“With Respect To”

After last Thursday’s “Drafting Clearer Contracts” seminar in Dallas for West LegalEdcenter, I had the pleasure of having dinner with longtime reader and commenter Chris Lemens. He asked me about with respect to. This one’s for you, Chris.

According to Garner’s Modern American Usage, “The phrases with respect to and in respect of are usually best replaced by single prepositions.” I decided to test that by examining a random assortment of instances of use of with respect to in contracts filed on the SEC’s EDGAR system.

Here are some instances where, I suggest, with respect to could indeed be replaced by another preposition:

… unless and until (i) the Registration Statement filed with the Commission with respect to [read for] a Registration pursuant to a Demand Registration has been declared effective by the Commission …

“Lock-up Period” shall mean, with respect to [read for] the Initial Shares, the period ending on …

The holders of certificates previously evidencing shares of DTBC Stock, outstanding immediately prior to the Effective Time, shall cease to have any rights with respect to [read in] such shares of DTBC Stock except as otherwise provided herein or by law.

… and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to [read for] any of the foregoing matters.

No dividends or other distributions declared or made after the Effective Time with respect to [read on] SFNC Stock with a record date after the Effective Time shall be paid to …

Alternatively, some other surgery might be in order:

… the CIO may revoke or change Borrowing Instructions with respect to a Fund [read a Fund’s Borrowing Instructions] by notifying the Credit Facility Team.

“Prospectus” means with respect to each Borrower the prospectus required to be delivered by the Borrower to offerees of its securities under the Securities Act of 1933 [read a prospectus that under the Securities Act of 1933 a Borrower is required to deliver to offerees of its securities].

Add to this second category an example (not from a contract) that Garner offers as an example of an instance where you can replace with respect to with a single preposition:

Clinton … has continued to enjoy stronger support from women than men even with respect to [read in] the Paula Jones case.

But in this example, replacing with respect to with in doesn’t work: it would suggest that the women and men in question are somehow directly involved in the Paula Jones case. I’d make a broader change. For example, I might say instead in his handling of.

Finally, here are three two [second example moved above] instances where I can’t think of any way of replacing with respect to:

… any reference in this Agreement to materiality with respect to either party shall, as to DTBC, be deemed to be …

“Prospectus” means with respect to each Borrower the prospectus required to be delivered by the Borrower to offerees of its securities pursuant to the Securities Act of 1933, as amended.

“Affiliate” means, with respect to any specified Person, any other Person …

Note that in each of the previous three examples, with respect to links something to a party or other person. I wonder whether I can draw some general conclusion from that. Further trolling on EDGAR awaits.

So, see whether you can replace the rather stuffy with respect to with a single preposition or a broader fix, but don’t feel bad if in some instances with respect to is your best option.

[Updated April 1, 2014: You’ll note the back and forth in the comments; I’ve also discussed this on Twitter. I’ve attempted to wean myself off of with respect to. I’ve used as to in contexts analogous to the final two examples above, just to see what it feels like. Ultimately, I can’t get worked up about with respect to. It’s a little bit wordy, but it’s not confusing. I’d rank it very low in the list of issues facing traditional contract prose.]

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.