You’re of course aware that in many contracts, the unnecessary defined term Party is defined using this sort of thing: individually a “Party” and collectively the “Parties”. It’s ridiculous—we know how singular and plural work, thanks.
Last year I did this post about how drafters use that formula for other defined terms, making it even more insane. Well, I can now add to the insanity. A couple of weeks ago I spotted the equivalent in an autonomous definition:
WTF! And if you’re doing it for Affiliate, you have no reason not to do it for every flippin common-noun defined term. So I did some more random searching on EDGAR. Was this treatment given to Subsidiary? Check:
Person? Check:
Plan? Check:
After hitting the first three I tried, I got the message: as harebrained as this is, it’s commonplace, in a random sort of way. It’s beyond explaining. You just have to write it off as another bizarro product of the legalistic mindset, as amplified by copy-and-pasting.
Singular and plural definitions have been a sore point for those of us making software for contract drafting and contract management.
We want our computers to check our defined terms for us. That includes making sure that every use of a term corresponds to a term that has also been defined. If I use “Affiliate” I want the computer to check that “Affiliate” is defined somewhere, and defined only once. But computers aren’t actually that good at translating arbitrary English singular noun phrases into plural noun phrases. The easy cases are easy, but still require a long list of irregular nouns. The hard cases, especially those with multiple nouns and adjectives in the defined noun phrase, are hard enough that you really just want to do it manually.
Seeing all this, Common Form requires that drafters define terms in the singular to use them in the singular and define terms in the plural to use them in the plural. But there are far shorter, plainer ways to do this than the usual gobbledygook:
This strikes me as a pretty sound use of parentheses: enclosing material the reader can safely skip.
If you’re allergic to parens, you can also do:
I don’t know. I think at some point you have to assume that the people using the contract aren’t morons.
Yeah no :-) The magic isn’t in creating the defined term: define it in the singular and it follows that it can also be used in the plural. The magic is in using the defined term so that, if the stakes are high enough to make it worthwhile, you’re explicit about whether a provision applies to just the singular, just the plural, or both.
Agree completely…but I can’t stop myself. It’s almost Pavlovian. I’m taking baby steps. I’ve gone to “Party(ies)” on occasion. I’ve also added added this to my miscellaneous section in an effort to help myself over the fear of not specifically including the plural in a definition:
16.5 Interpretation: For purposes of this Agreement: (a) the words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural and vice-versa; and (e) words denoting any gender includes all genders. Unless the context otherwise requires, references in this Agreement to: (x) sections, exhibits, schedules, attachments, and appendices mean those of this Agreement; (y) an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) a Law means such Law as amended from time to time and includes any successor Law thereto.
Hi Heather. MSCD has a short chapter discussing internal rules of that sort. Almost all are unnecessary or downright bad :-(
Given half a chance, I insert ‘…and the masculine embraces the feminine.’ So sue me.