Billing by the word (or, “Redundant Redundancy FTL”)

Hey everybody!

I hope all of you have had an amazing weekend!  The crush of work I mentioned in my last entry is finally finished, so I’ve spent the past couple days reflecting on life,1 relaxing,2 and now working on a leadership development presentation for my undergraduate colleagues in the N.C. Central University Student Government.

And of course taking a break to throw one of these posts together

It’s no secret that I’m generally not a fan of Contracts (see here and here and here if you don’t know why). The concepts aren’t exactly difficult, I’m just not aware of any field of law where people have gone to greater lengths to defile the meaning of perfectly functional English words.

Now most legal documents seem to have taken the old adage of “Don’t use a 10-cent word when a 5-cent word will do” and replaced it with “Don’t use a 10-cent word when an identical or substantially similar conveyance of meaning is articulable through the concurrent deployment of at least, but not limited to, a half-dozen or more $2 locutions.”

So this entry is dedicated to those documents and to the lawyers billing by the word who wrote them.3

I’ve picked a quartet of clauses from actual contracts that have crossed my desk over the past few months for your reading pleasure, and underlined the language that irks me…

Honorable Mention:

This Agreement shall be governed by the laws of the State of [RandomState], without reference to its conflict of laws principles.

Now I realize that this underlined snippet is actually designed to serve a purpose. Those of you who paid attention in CivPro might recognize this entire clause as a “choice of law” provision, indicating which state’s laws the parties want to use in enforcing the contract. And some of those states have enacted statutes — their “conflict of laws principles” — that say if a cause of action arises in another state, that other state’s laws should govern the conflict.

So, hypothetically, if a contract between a buyer in North Carolina and a seller in Virginia is construed under North Carolina law, but something happens in Virginia such that the seller defaults and the buyer files suit, a judge interpreting the contract might say “Construing this contract under North Carolina law, since this default happened in Virginia and North Carolina’s conflict of laws provisions say a contract must be governed by the law of the state giving rise to the cause of action, the Virginia law applies to this suit.” The underlined text would, theoretically at least, prevent that from happening.

[Note that I don’t actually know if what would actually happen in that particular hypothetical, I’m just trying to come up with a rational explanation for the underlined verbiage ]

Then why, assuming this language really does serve a purpose, did it get included in my list?

Because one of the cardinal principles of contract interpretation is construing the contract in a way that effects the intent of the parties. It’s evident from including a choice of law provision in the first place that the parties wanted it governed by the law of the chosen state. For either party to then use the chosen state’s conflict of laws principles to wedge their way under the aegis of a different state’s laws would seem (to my feeble mind at least) to frustrate the signatories’ intent.

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Third Place:

Notwithstanding any provision of this Agreement to the contrary, if any confidential information is required to be disclosed pursuant to an order of a governmental agency or by operation of law, the receiving party shall be permitted to disclose such confidential information in accordance with the order or law. Prior to the disclosure the receiving party shall, unless prohibited by law, give the disclosing party reasonable advance notice to contest the disclosure.

Is there any kind of notice “[p]rior to the disclosure” that would not be “advance notice”?

Is there any kind of “advance notice” to contest a disclosure that could happen after “[p]rior to the disclosure”?

Unless the meaning of those basic words has changed since I last took an English class, the answer to both questions is “no.” The redundancy is unnecessary surplusage.4

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Second Place:

In the event of a breach of this Agreement, [OurCo] may demand from [YourCo] the sum of One-Hundred Thousand U.S. Dollars ($100,000.00) as liquidated damages and as reimbursement for expenses incurred and estimated to be incurred by [OurCo], which [YourCo] agrees to pay to [OurCo] within five (5) business days of the demand by [OurCo].

This one evidently originated in the Legal Department of a company that really likes seeing its name in print

This type of “break fee” provision is common in many contracts, designed to incentivize a party to avoid breaching the agreement. It’s obvious from the first sentence that the ability to demand payment in this clause belongs to OurCo, so the recitation of the rationale (“reimbursement for expenses…” blah blah blah) doesn’t need the “by OurCo” reference. Neither does the last line, since nothing in this clause gives YourCo the ability to make such a demand; we’re only talking about OurCo’s demand here.

And if OurCo is making the demand, why require in the contract that YourCo must “pay [it] to OurCo”? Maybe OurCo’s finance guys want YourCo to pay the money to some random charity so it’s not reflected as income on OurCo’s balance sheet.

Lots of redundancy all around… ::smh::

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Before getting into our First Place winner, I have to confess up front that I bear some responsibility for any continued longevity this provision now has — I alphabetized the original and removed some of its duplicate listings.5

First Place:

“Document” means a physical embodiment of information or ideas of any kind or nature, including items that are handwritten, printed, mimeographed, lithographed, duplicated, typed, or contained in a graphic, photographic, film, video, tape or other electronic recording. Examples of documents include, but are not limited to: accounts, affidavits, analyses, answers to questionnaires, appointment books, balance sheets, bills, blueprints, book entries, books, cables, calculations, catalogs, charts, checks, computer files, computer logs, computer printouts, computer programs, contracts, correspondence, data, deeds, deposit slips, desk calendars, diagrams, diaries, drafts, drawings, emails, evaluations, expense reports, films, forms, formulas, graphs, income and/or investment statements, indexes, instructions, invoices, journals, ledgers, letters, license agreements, lists, logs, magnetic tapes and cards, manuals, maps, memoranda, microfilms, minutes, money orders, newspaper articles or clippings, notations, notes, offers, opinions, pamphlets, papers, periodicals, photographs, plans, publications, punch cards, purchase orders, questionnaires, receipts, records, renderings, reports, schedules, sheets, specifications, statements, statistical records, studies, summaries, surveys, tabulations, tax returns, telegrams, telex messages, text messages of any kind (including AIM, ICQ, MMS and SMS), transcripts, vouchers, warranties, web pages, websites, work papers, and worksheets. Documents also include, but are not limited to, reports and recordings of (i) telephone or other conversations, (ii) interviews or personal conversations, (iii) conferences, or (iv) committee meetings or other meetings, in addition to all other records or information kept by electronic, photographic, mechanical or other means, and things similar to any of the foregoing, however denominated.

This one actually takes up an entire page once it’s put in 12pt Times New Roman and doubled-spaced

For comparison, Black’s Law Dictionary defines a “document” as “Something tangible on which words, symbols, or marks are recorded.”

And Merriam-Webster’s goes with “a piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record.”

Neither apparently feels it necessary to provide a page’s worth of examples.

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Have a good night y’all!

1. Son of TDot turned 13 yesterday [↩]
2. Saw Harry Potter 7.2 with 雅雅… and, the storyline notwithstanding, thought it was the worst film in the series [↩]
3. Hat tip to Peter Romary of The True Verdict blawg for inadvertently suggesting the title of this entry [↩]
4. And yes, I realize “unnecessary surplusage” is redundant — that’s the point [↩]
5. Meaning the original was even worse, if you can imagine that… [↩]

Tags: 3L, ::facepalm::, CivPro, é›…é›…, Ks, SG, Son of TDot