Yesterday I found this on EDGAR:
It’s commonplace for contracts to contain instances of notice in writing or written notice and the like even though the notices provision says that all notices must be in writing. Whoever created the highlighted language was aware of that but decided that instead of, or in addition to, encouraging drafters to use search-and-replace to fix such glitches and expecting them to do so, it would be prudent to add language inviting readers to disregard such glitches.
Here’s another example of the same assume-the-worst urge:
Yes, copy-and-pasting from different contracts could result in Cerence Inc. being referred to as both Cerence and the Company in a single contract. This too could be fixed by search-and-replace, but what if someone doesn’t think to do that?
A third example comes from the set of internal rules of interpretation that contained the first example above:
the word “will” will be construed to have the same meaning and effect as the word “shall”;
Of course, that’s a hopeless gesture in the face of the random chaos of verb structures in traditional contract drafting, but what’s relevant for our purposes is that it’s another example of a willingness to paper over cracks. Presumably the idea is that instead of expecting drafters to changing all instance of will to shall—again, a ludicrous notion—let’s harmonize them after the fact.
I know that expediency is a powerful force in transactional work, but the urge represented by these three examples seems an admission of defeat. For one thing, they represent a drop in the bucket; I could come up with many other such fixes. And they signal to the reader that we’ve lost control over contracts. Or rather that we never had control in the first place.
If there is a difference in meaning between shall and will (I don’t know of any) then which meaning does the above wording say is to apply? Shall?
In Ken’s Manual of Style, “shall” is what Ken calls language of obligation, and will is language of policy. I’ll defer to Ken for any further explanation of those categories.
Mark, if you were destined to be at one with my “categories of contract language” framework, it would have happened years ago! So I’ll spare you an explanation, unless you really, really want one.
Spackling is a valid means of repairing wall defects, in some cases. Putting a strip of painters tape over the crack, on the other hand, is more like what these examples are doing. It’s like a handyman giving the homeowner a card that says “I’m incompetent, so please forgive me. That’ll be $600, by the way.”
True: I was indeed groping for “paper over the cracks,” and that’s what I’ll change it to. Thanks!
I’m adding this to my pending “GC rant” blog post. This is aggravating, and it doesn’t require $500/hour to fix these problems, either.
A few thoughts prompted by this post and some of the comments:
1/ The fact that exigent circumstances (like lack of time) sometimes keep one from following best drafting practices doesn’t make those practices not the best. And the fact that a particular poorly drafted provision is unlikely to cause disputes doesn’t broaden or alter the best way to express the idea.
2/ I think it used to be held that ‘shall’ expressed simple futurity in the first person, and ‘will’ the same in the second and third person, while ‘will’ was a slightly stronger expression of determination or intention in the first person, and ‘shall’ the same in the second and third person. This has mostly gone the way of the dodo, and has no relationship to the MSCD use of ‘shall’ and ‘will’.
3/ I think ‘shall’ should be a defined term in contracts following MSCD. The disciplined use of ‘shall’ — one of the chief glories of MSCD style and a wonderful clarifier of contract prose — is distinct enough from ordinary usage to warrant definition. It needn’t be much: ‘”Shall” means only that the subject of the sentence is taking on the described obligation by signing this agreement’.
4/ In theory I can see allowing a spot of redundancy where it really matters (‘…must notify — in writing — Acme of the change at least a week in advance’), but in practice I can’t conjure up an instance where I would bless an exception to the rule against redundancy.
5/ This brings to mind again the issue of clearly but non-distractingly emphasizing each use of a defined term like ‘notice’ (or ‘notify’). I’m no fan of the ‘nitcap method’ (eg, ‘Blue Paint’), but what’s better? My latest notion is to put defined terms in a slightly different font, for example regular text in Calibri (non-serif) and defined terms is Cambria (serif), or vice versa. If the drafter makes clear to the reader terms have definitions or prescribed interpretations, she needn’t haul out bits and pieces of the definition or interpretive rule and stick them on site for emphasis or reminder.
6/ One wonders whether papering over glitches instead of fixing them really saves much time. “Anything in this agreement to the contrary notwithstanding, all fees are nonrefundable” may seem quicker than finding and altering references to refundable fees, and it may indeed be a little quicker, but is it worth the possible bother of having later to decide which of two conflicting fee provisions prevails?
Best wishes for health and wealth to all. –Wright