Somehow, I now find myself articulating for the first time concepts I’ve relied on since forever.
Today’s concept is “semantics hygiene”. That’s my term for getting in the habit of expressing yourself clearly in contracts, even if in a given context little or nothing is at stake.
The term “semantics hygiene” is brand new. I first used it a couple of days ago in a comment to this LinkedIn post, in which I compared three different ways of expressing a given condition. In the post, I opt for this way to express the condition: To be effective, an amendment to this agreement must be in writing and signed by both parties. Curtis Fuller was in favor of a fourth alternative, Amendments must be in writing and signed by the parties. It was endorsed by Warren Agin. I replied with this comment:
Relying on “must” leaves it unclear whether you’re expressing an obligation or a condition. Would that result in confusion? In this case, no. But I believe in semantics hygiene—getting in the habit of making it explicit what you mean. Failing to distinguish between obligations and conditions is a common source of confusion in contracts, so it’s best to get in the habit of doing so, even in contexts where little is at stake. And when you do so, you’re always rendering the reader a service.
So there you have it—the first time I’ve articulated the notion of semantics hygiene. But its presence is felt in many of my recommendations.
For example, agrees to. It can result in a fight over whether you’re doing something at signing or have an obligation to do it later. See for example Stanford v. Roche, discussed in this 2011 blog post. In other contexts—for example, Acme agrees to use reasonable efforts to polish the Widgets—agrees to doesn’t give rise to those alternative meanings. Instead, it expresses an obligation. But I recommend not using agrees to anywhere. Using agrees to in the latter ambiguity-free context makes it available to use ambiguously. And if you want to express an obligation imposed on a party that’s the subject of the sentence, use shall. So agrees to is on “the forbidden list”—my notional list of words and phrases that cause too much trouble for me to use them in contracts at all.
Semantics hygiene!
