It’s easy enough to find contracts that use amongst. A search on Westlaw’s version of EDGAR that was limited to items filed in the past three years yielded 4,774 hits. Here are four examples, with those apparently drafted in Commonwealth countries noted with an asterisk: … then the Maximum Indemnification Amount or the balance thereof shall be divided amongst the Office Holders at … Read More
I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by … Read More
Choices in contract drafting come in big and small packages. Today, let’s think small; let’s think breach. Count Noun or Mass Noun? Consider the following: It will not constitute [a breach] [breach] of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose … Both of the bracketed alternatives work. How so, you ask? Well, … Read More
The corner of Twitter that’s interested in English usage has recently been all aflutter over that popular topic, they used as a singular pronoun, as in “If a patron doesn’t like the opera, they are free to leave.” It seems to have been sparked by this Wall Street Journal article by @bgzimmer. The article suggests that copy editors are increasingly willing to accept … Read More
Reader Estela Mora Alfonsín sent me the following request: I am writing to ask if you could shed some light on the usage of the expression (apparently very frequent in legal writing) “regard shall be had”. Honestly, I have not seen it in many contexts but one of my teachers at the translation course I am taking insists in us … Read More
In this recent post, I considered as stated in as an alternative to in accordance with and found it wanting. But in this comment, A. Wright Burke proposed that under “is the better choice.” So he has thrown down the gauntlet; I accept the challenge, at the risk of having to run the gantlet. Below are eight instances of in … Read More
Two recent exchanges have led me to consider that when it comes to seeking simplicity in the language of business contracts, one can reach a point of diminishing returns. “In Accordance With” A couple of weeks ago, a reader mentioned in an email to me that he prefers as stated in over in accordance with, as being less legalistic and shorter. … Read More
In this post I promised that I would write about voluntarily. Rejoice, friends—that time has come. As a bonus, I give you also freely. The problem with both words is that the whole idea of a contract is that you enter into it because you want to and you agree to everything that it contains, so voluntarily and freely go without … Read More
Yesterday I unleashed on an unsuspecting world the following devastating insight: Instead of "shall without undue delay," I'd use "shall promptly". — Ken Adams (@AdamsDrafting) April 6, 2015 That’s straightforward enough—if you can express something positively instead of negatively and save a couple of words in the process, then you should do so. I had planned to leave it at … Read More
At my recent “Drafting Clearer Contracts” seminar in San Francisco, a participant asked me what I thought of use of the phrase knowingly, voluntarily, and intentionally in waivers of jury trial, as in the following EDGAR example (I converted it from all caps to spare you having your eyeballs explode): The borrowers hereby knowingly, voluntarily, intentionally and irrevocably waive all … Read More
