In a contract dispute, the courts must give every word in a provision meaning. (See Lowe v. SEC (1985); Reiter v. Sonotone Corp (1979), FDIC v. Singh (1992), and myriad others.) Including unnecessary words in your contracts out of habit or to lend gravitas at best only confuses the reader; at worst it opens the door to unanticipated interpretations.
Are you using the following phrases in your contracts? If so, I urge you to consider why: Is it inertia, or have you thoughtfully considered their meaning?
In witness whereof: Contract language should be clear, a fact that seems self-evident until one wades through pages and pages of archaisms. Legal writers cling to these terms, although they are no longer used in any other area. Archaisms are so common many lawyers don’t even notice them anymore—how many times have you read in witness whereof without giving it a second thought?—but they add meaningless weight and clutter, making it more difficult for the parties to understand their agreement’s actual meaning. In witness whereof is commonly used before a contract’s signature block, for example, In witness whereof, the parties are signing this contract on the date indicated below. In this instance, it is much more clear (and perfectly acceptable) to simply write The parties are signing this contract on the date indicated below.
By and between: Just use between. Contract drafters have a tendency to use couplets (such as indemnify and hold harmless) but, operating on the assumption that every word in a contract must be given meaning, stacking up synonyms can lead courts to try to find distinctions where none were intended. Give careful thought to whether you want such distinctions to be made.
Intend to legally be bound: Intent to be legally bound is implicit in a contract. If the parties don’t intend to be legally bound, you don’t have a contract. Unless you’re in Pennsylvania (where the Uniform Written Obligations Act validates certain transactions without consideration if there is a statement that the signer intends to be legally bound), you can leave out this phrase.
For the avoidance of doubt: This phrase does nothing to clarify, but instead is used as either a meaningless transition, for rhetorical emphasis, to state the blatantly obvious, or to define. In all instances, it’s unneeded. Rather than using transitions such as for the avoidance of doubt, just say what you want to say. Rhetorical emphasis isn’t needed in contracts—all provisions must be given meaning. If the information following this phrase is obvious, it is nonsensical—and you should further consider whether you need to state something that is painfully obvious. When defining something, simply using which means is quicker and clearer. If you do feel the need to clarify something in your contract, rather than using for the avoidance of doubt, consider rewriting that provision.
Duly authorized: This phrase is redundant. Duly means following proper procedure. One cannot be authorized but not duly authorized. Garner’s Dictionary of Legal Usage says: “Because authorize denotes the giving of actual or official power, duly (i.e., ‘properly’) is usually unnecessary.”
At no time: This phrasing should almost always be replaced with not. For example: Executive's Severance Pay will [at no time] not be greater than 36 months of Executive's base salary. In language expressing prohibitions, it is much clearer and cleaner to simply use shall not to describe things parties to a contract are prohibited from doing.
May at its sole discretion: May grants a party the discretion to do or not do something, so adding at its sole discretion is redundant.
If you would like help revising your contracts to avoid misleading or unnecessary wording, please contact us.