Keith Bishop—he of the California Corporate & Securities Law blog—was kind enough to tell me about this post, dealing with a dispute over the meaning of the phrase “within 30 days prior to” in the context of the time period for exercising an option.
The court opinion in question is Wilson v. Gentile, 8 Cal. App. 4th 759 (1992) (here). Here’s how the court introduced the issue:
In this case we are asked to interpret a clause requiring an option to be exercised “within thirty (30) days prior to the expiration” of the option period. Appellant argues this language requires the option to be exercised “no later than” 30 days before the option period expires. We conclude this language instead allows the option to be exercised during the 30-day period immediately preceding the expiration of the option. Accordingly, we affirm the trial court’s judgment which enforced an option exercised seven days before the option period expired.
I agree with the court, but as usual, the question we’re interested in is, What should a drafter do?
The first thing to consider is that in this context, within is an awkward choice to express one’s intended meaning, whatever it is. It would be simpler to say no later than 30 days before or during the 30 days before.
Generally, within is a nuisance. As noted in MSCD 10.49, “depending on the context, [within] can denote a period of time that is both forward- and backward-running, a fact that might escape a party and its lawyers.” I suspect that this fluidity contributed to the Wilson dispute.
If that weren’t enough reason to get rid of within, note that California courts interpret within X days prior to differently in the context of options to renew leases. Because allowing someone to renew a lease any time up to expiration of the lease would put the lessor in an awkward position, California courts have decided that in this context, within X days prior to means at least X days prior to. It’s bad news if a phrase changes its meaning depending on what what kind of transaction you’re dealing with.
So that’s an added reason to dispense with within.
3 thoughts on ““Within 30 Days Prior To””
1/ The court speaks loosely when it says the clause ‘requir[es the] option to be exercised’.
If the optionee is *required* to exercise the option, it’s not an option.
Options in general, it seems, grant the optionee a right without any duty and impose on the optionor a conditional duty.
Ken, do you agree?
2/ ‘Lease option agreement’ might do as a title for the instrument, but I don’t see the need for the words ‘option’ or ‘exercise’ in the key passage. Just state the conditional duty.
Here’s my attempt:
‘Gentile shall sell Wilson the Property for $850,000 if Wilson gives Gentile Notice of Intent to Purchase between midnight at the start of June 1, 1987 and midnight at the end of November 30, 1987’.
3/ I didn’t till now find ‘within’ risky except in the formulation ‘within 10 days of [point]’, which sets up a 20-day period defined by its center point.
4/ Don’t all periods run forward? Some two-ended periods are defined as a duration plus an end point, but periods so described, like all others, still run forward.
5/ I read with horror that physicists had discovered rare particles that move backwards through time. If even one such particle exists, it means future causes can have present effects, which turns reality inside out. Maybe that’s just what reality needs.
6/ We learn from mistakes, preferably those of others.
Re your points 4 and 5, you obviously haven’t been keeping up on Doctor Who. That sort of thing happens all the…time. As writer Steven Moffat so eloquently put it, “People assume that time is a strict progression of cause to effect, but
*actually* from a non-linear, non-subjective viewpoint, it’s more like a
big ball of wibbly wobbly, timey wimey… stuff.”
Plus, your rewrite seems spot on.
As is Moffat’s improved simile.