“Workmanlike”: A Case Study in Mishandling Vagueness

The word workmanlike features in a lot of contracts on EDGAR, particularly loan agreements and landlord-tenant contracts. Here are three random examples:

Borrower shall only use contractors … who generally have a good reputation for completing their work in a neat, prompt and workmanlike manner …

All Tenant Improvements shall be done at Tenant’s full cost, expense and risk, shall comply with all applicable governmental rules and regulations, and shall be done in a first class workmanlike manner.

Each Party covenants, represents and warrants to the other Party that … it will meet its obligations hereunder in a professional and workmanlike manner …

I recommend you purge workmanlike from your contract vocabulary.

One problem is that it has two different meanings. According to Merriam-Webster, one meaning is “characterized by the skill and efficiency typical of a good workman.” The other meaning is borderline pejorative: “competent and skillful but not outstanding or original.” If you were to say that my writing was workmanlike, I wouldn’t be thrilled.

A second problem is that the word is—to use loaded terminology—both classist and sexist. Surely more specific and dignified alternatives are available.

But the biggest problem with workmanlike is that its use is symptomatic of drafter unease with vagueness. If you’re asking someone to do something for you, being precise allows you to avoid disputes. For example, if you’re hiring someone to clean your factory, you could give them a detailed list of what you want cleaned, and how, listing equipment, personnel, cleaning products, schedule, and so on.

But that won’t always be possible, or you might not have the time or energy to micromanage, and in that case you have to rely on vagueness. Many drafters think that the best way to handle vagueness is to load up on different standards, the more offbeat, the better. Hence workmanlike.

I recommend that instead you express your expectations as simply as possible, using just one standard—a standard other than workmanlike.

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.

19 thoughts on ““Workmanlike”: A Case Study in Mishandling Vagueness”

  1. Ken:

    So, a little oddly, I think I disagree with your recommendation though I’m pretty close to the fence. The warranty of workmanlike performance has a lot of case law defining what it does and does not mean. I did research into it in Texas about 20 years ago and was surprised at how definite it was. Merriam-Webster’s not a very good counter to the weight of that case law. What I retained of that research was that it means that the work product is “passable” as the work product of someone ordinarily skilled in the work being performed. It’s a level below “professional” (in the sense that gives rise to malpractice). (I believe, if you researched this, you would find that the courts believe there is a difference between the two standards, and that the jury instructions are sufficiently different that there is a real difference in how the cases come out.) So one should not normally see both workmanlike and professional in the same warranty to refer to the work-product’s quality (as opposed to referring to workmanlike work product and professional demeanor, for example). You might think of it being a little like merchantable in the UCC context.

    Turning to your reasons, your first one is the very reason to use the term workmanlike. It is less onerous than professional, so vendors should want to use it, especially when describing activities that are genuinely performed by what we used to call workmen — plumbers, carpenters, and so on (as opposed to professionals like architects, engineers, and the like).

    I agree with your second complaint, about it being sexist. For that reason, I’d embrace any equivalent alternative. I’m perfectly happy being “classist,” since that’s happily not a thing in the US. I don;t really see a succinct alternative though.

    I kind-of agree with your third reason, that it is better to be precise. But the breadth of the workmanlike-performance warranty helps address the things that are hard to capture. Its the same reason one uses reasonable efforts, rather than some specified level of effort, or material adverse effect, rather than some specified effects. If I can identify a specific performance level, I’d like to, but I also suspect that I can’t always, so I still need an alternative.

    I suppose an alternative would be to put in a titled section, called “Warranty of Workmanlike Performance,” then have the substance of the warranty in text. From the perspective of a self-interested negotiator, that invites negotiation, which just giving a warranty of workmanlike performance does not.

    Chris

    Reply
    • Ken:

      Oh, also “first class workmanlike manner” and “professional and workmanlike manner” are a contradiction in terms, at least under Texas case law. And I have no reason to believe it is different anywhere else. The point of “workmanlike” is ordinariness.

      Chris

      Reply
    • This is an interesting post and discussion. Many US government contracts are issued under “GSA Schedules” which often specify that work be performed in a “good and workmanlike manner.” In this case, government contractors offer to the government good, services, real property, weapons’ systems, etc… and the government tends to apply the standard of “workmanlife” to the field for the applicable orders. I am inclined to think that with a nearly unlimited scope that the government should either:
      1) Abandon such warranty at the “GSA Schedule” level and address in each contract specifically
      or
      2) Keep using workmanlike.

      Reply
    • Thanks for that context; it’s important to know. I’ll ponder.

      And by the way, I don’t think I’ve ever used the word “classist” before. I just think we can say what people do instead of calling them workmen.

      Reply
      • My experience is the same as Chris’s in that “workmanlike” is the
        services equivalent of “merchantable”; but it generally doesn’t have the
        benefit of a statutory definition. Of course one can always say “workerlike,” but since, as Chris points out, there is a pretty definite gloss on what “workmanlike” means (though that gloss may vary from state to state), one takes a bit of a risk.

        So the problem is that it’s a term of art, and we should try to find something in standard English that conveys the same thought without using a term of art, the way you do with “represents and warrants.” Are you volunteering to bell that cat?

        Reply
          • In answer to your first question, it might be possible; the words “skill” and “skillful” aren’t necessarily the same concept–just think of how “careless” now means something different from what it used to, which was “carefree.” Your use of “competently” raises the distinction between the skill set a provider has and how well it executes against whatever skill set it has. In other words, “competently” seems geared to the latter, while leaving out the former. Under both the “workmanlike” and “reasonable care and skill” rubrics, there’s an implicit or explicit invocation of both. You want to convey the notion that the provider will have the skills necessary, and will use them competently. So just “competently” does half the job; what about the rest?

          • I might be wrong, but for now I disagree categorically. The word competently works fine if you specify what you want built—if, in other words, you say what materials you want used, what the dimensions should be, and so on. If you’re not specific—if, in other words, you say, “Build me a wall!”—I don’t see how using workmanlike or care and skill—saves you from a world of uncertainty.

          • If I say, advise me on this patent licensing transaction, and the person advising tries their best but is a general practitioner with no real insight into IP transactions, they may take care but lack the requisite skill.

          • I’ve been using “shall carryout xxxx in a competent manner” you think “competently” does the job just as well? I’m all for losing a word where possible.

          • “Competently” looks awfully good. It’s compact, applies with equal force to patent licensing advice and cleaning leaves from eave troughs, and neatly blends both care and skill into one umbrella concept.

            My remaining uncertainty is whether it’s necessary. Does ‘shall build a wall’ not imply competence? If not, where does the need to specify competence end? Must we specify that parties giving notice by mail must do so competently?

          • Ken:

            The context for this comment is that I’m on the sell side and our services are numerous, small, repetitive, and transactional in nature, as opposed to big chunky projects.

            I’d add is that I’d want the court to decide whether we performed the services competently to be based on the entirety of the services performed for the client, not just the defective instance. That way, I can introduce evidence that we got 99.9…% right as evidence of competence, despite the one time we made a mistake. I’d probably shorten it down to “competently perform the Services as a whole.”

            Chris

  2. NFPA 70 National Electric Code (NEC) Articles 110.12, 640.6, 640.22, 640.43, 720.11, 725.6, 760.6, 770.8, 800.6, 820.6, and 830.7 each have a statement to the effect that circuits and equipment shall be installed in a neat and workmanlike manner, referencing ANSI/NECA 1.

    American National Standards Institute/National Electrical Contractors Association ANSI/NECA 1-2015 Standard for Good Workmanship in Electrical Contracting defines Workmanlike in paragraph 9. Wire and Cable section h) Cables that are installed exposed shall be run parallel and perpendicular to the surface of the building or exposed structural members and follow the surface contours as much as practical.

    Running parallel and perpendicular while following surface contours prevents kitty corner jay-walking, hypotenusing, or as-the-crow-flies, diagonal, up-down zig-zaggy, and side-to-side wig-waggy routing of cables, wires and conduit that, either immediately or over time, has a tendency to block access to equipment, or especially for open ceiling construction fails Feng Shui aesthetics.

    Plumb, level, square, parallel and perpendicular are fundamental to all building and construction trades with requirements typically defined in construction specifications.

    Immediately suspect any construction laborer or technician that fails to show up with PPE, level, square, tape measure, and nowadays a 3-way 360 degree (vertical, horizontal, cross-point) self-leveling green laser along with a separate laser for quickly measuring distances.

    Day laborers, temp agency employees, and many freelancers just entering the trade will cause significant rework (wasted time and material) due to ignorance and disregard of generally accepted industry standards, unless observed closely. Never ever leave them alone without competent and qualified supervision intimately familiar with code compliance construction means and methods.

    Reply

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