Yet More on Rhetorical Emphasis

Today I encountered another form of rhetorical emphasis to add to those noted in MSCD 13.37–38 and in my previous post on the subject.

This is from a software license agreement:

Licensor shall NOT indemnify, defend or hold Licensee harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Licensee in connection with any U.S. patent or any copyright or other intellectual property infringement claim by any third party with respect to the Licensed Products.

Note the “not” in all capitals. I use typography to emphasize article headings, section headings, each defined term when it’s first being defined, party names in the introductory clause, and so on, the aim being to make them catch the eye a bit. (See MSCD 12.7–9.) And in limited contexts it’s appropriate to emphasis a sentence or more. (See MSCD 12.10–15.) But emphasizing one or more select words in a provision (with all capitals, italics, underlining, or otherwise) to indicate that you really, really mean it is something else again—it’s a form of rhetorical emphasis.

I’ve previously suggested that although as a general matter you’re best off dispensing with rhetorical emphasis, one or more parties might feel more secure adding rhetorical emphasis to a particularly sensitive provision. But this form of rhetorical emphasis—selective typographic emphasis of words in a provision—I’d steer clear of entirely. It’s too redolent of legal writing that seeks to persuade.

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.

4 thoughts on “Yet More on Rhetorical Emphasis”

  1. Agreed — Let me offer a different way out of this.

    But the reason the writer felt so compelled to put in the misbegotten “not” here is that the writer first started with what those who write software licenses all day would quickly recognize as the typical language that is part of a grant of indemnity rather that something that would be typically used as part of a (potentially redundant) disclaimer, an exclusion within the granting clause or a reclamation of something that had been granted elsewhere in the agreement.

    When I read that quickly, I start seeing words associated with “grant” and my mind starts to churn over the issues I need to analyze as part of a grant. In fact, if I took that entire sentence and simply removed the “not,” it might well serve as a granting clause for an indemnity to the Licensee regarding U.S. patents and world-wide (including U.S.) copyrights.

    (SIDEBAR: There are substantive issues behind the distinction of U.S. patents versus ‘any’ copyright, which are beyond the scope of this particular blog, and which I do not always agree with in principal. But, if I accept as a given that this substance is justified in practice, I am also not all that happy with the phrasing here, which comes up all the time, since it is not crystal clear to me that the intention of adding “or any” necessarily removes the “U.S.” modifier that applied to “patents.” The simplest way to avoid that is to put the more narrowly protected patent rights at the end of the list and distinguish it as not part of one long list to which the narrower modifier might apply (i.e., “any worldwide copyrights, trademarks or service marks, or any U.S. patents (each of which is an “Indemnified IP Right”).)

    If I am sloppy as a reader (or forced to read something a client just sent to me and he is hoping to sign in the next half-hour, and would I just give it a quick scan please…), I miss the “not” in the middle of it and completely miss the point.

    The writer thinks it is helpful to me to be sure I note that the intention of the sentence, notwithstanding its borrowing of the language of a granting clause, by adding the rhetorical emphasis.

    Of course, the better way to deal with this is to simply not use grant-like language in the first place. If the idea is that there is no indemnity in the first place (i.e., I am not giving with one hand and taking away with another), then simply state “The Licensor has no obligation to indemnify Licensee for any intellectual property claims.” If I have already given with one hand but now take it away, then (presuming I have defined a term “Indemnity” that is the original grant), I might state “The Indemnity shall not apply to U.S. patents or any copyrights.”

    The worst intepretation of the quoted example is that it is simply a disclaimer of indemnity, and is not there to counter any other grant found elsewhere in the agreement. The proliferation of disclaimers that seem to be battling phantom implied warranties or obligations is one of my own pet peeves. There is no implied obligation to indemnify for intellectual property infringement (under the U.S. system at least). (There may be an implied warranty of intellectual property non-infringement, but that should be disclaimed using the required language under the statutory scheme where the implied warranty arose (for example, the Uniform Computer Information Transactions Act provides for an implied warranty of IP non-infringement and further dictates rules on how the contract drafter can effectively disclaim that implied warranty).) If the writer was seeking to disclaim an implied indemnity for intellectual property infringement claims, and there is no statutory basis for the implied warranty being disclaimed, the correct drafting of the disclaimer would be ” .” (Without the period. That’s just rhetorical emphasis.)

  2. I agree with the previous commentator that the capitalized “NOT” was probably more a matter of marking a change to “boiler-plate” language than one of strident refusal. I imagine that the “NOT” was inserted into a red-lined draft during negotiations.

    While the use of the capitalization in “NOT” is less than aesthetically perfect, the more egregious error is the misuse of the word “not” with the word “shall”. I interpret this provision to mean that, not only does the licensor not have a duty to indemnify the licensee, but the licensor has a duty to refrain from indemnifying the licensee (although I don’t anticipate the licensee complaining about a breach of this clause…).

    In this case, the capitalized term emphasizes more than merely the negative duty. It emphasized the clumsy drafting.


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