Earlier this week, during a marathon session of grading law-school assignments, my thoughts turned to words that, as a general matter, have no place in a contract. I have in mind humble words that are commonplace in narrative writing but strike a discordant note in contracts.
Here are a few:
Also; In Addition
The relationship between any two items in a contract should be clear. In this respect, also is too casual for my liking, too redolent of narrative writing. Take the following two sentences: Acme shall do X. Acme shall also do Y. The also in the second sentence serves little purpose, as it’s self-evident, even without the also, that Acme’s obligation to do Y is in addition to its obligation to do X. I’d rather say Acme shall do X and Y. For the same reason, I avoid in addition.
The word should suggests a duty—as in You should walk the dog—but it doesn’t impose one. Contracts are for rules, not exhortation, so this use of should has no place in the categories of contract language discussed in chapter 3 of MSCD.
But when I see should in contracts, it’s in another context—in conditional clauses. Instead of saying If Acme exercises the Option, some drafters would say (or more likely wouldn’t bother revising) If Acme should exercise the Option. (See example [8-1d] in MSCD.) According to The Comprehensive Grammar of the English Language (Quirk et al.), all this adds is “overtones of tentativeness”—something that accomplishes nothing in a contract.
May connotes permission; can connotes capability. In contracts, can could conceivably occur in two contexts.
First, it could be used in representations. But for purposes of representations, can is too vague, in that it could either refer to historical capability or be construed as an assertion of future capability. So instead of having Acme represent that the Acme Plant can produce 1,500,000 widgets per month, I might have Acme represent as to its recent production figures and also represent that there exists no impediment to continued production at that level.
Second, can could be used in language of discretion. In some contexts in general usage, using can instead of may is accepted (see Garner’s Modern American Usage), but such usages have no bearing on contract drafting. In language of discretion, stick with may.
In MSCD 9.39, I recommend that you steer clear of provided, however, that and its variants. Instead, express more clearly the relationship between the provisions being linked. The trailing provision could be a exception to, a condition of, or a limitation of the leading provision, or they could be independent provisions.
Once you eliminate provided, however, that, you shouldn’t have any need for however. It’s too ponderous for contract drafting.
Contracts are for rules, no explication. You shouldn’t need because.
That’s my list so far. If you spot holes in my logic or can think of other unhelpful words, by all means post a comment.
But note that in one context—recitals—one or more of these words might come in handy. Recitals constitute the one place in a contract where the drafter is called on to tell a story in straightforward prose before reverting to the austerity required in the body of the contract.