Professional Documents
Culture Documents
Thursday 9/3
TVS OF ^rW
Introduction
5
Part One The construction of documents
m e a n i n g w h i c h y o u wish to c o n v e y . T h e y m a y lack t h e
necessary precision. 'Day' and 'Night' are clear e n o u g h at
m o s t times. But w h e n d o e s day begin and night end? S o m e
m a y say at sunrise. Others w o u l d say at d a w n . T h e n w h e n
d o e s 'dawn' begin? N o o n e can tell e x a c t l y . Or a w o r d may
m e a n o n e thing to o n e person and a n o t h e r thing to another.
T a k e 'punctual p a y m e n t ' or 'prompt p a y m e n t 1 . T o o n e it
m a y mean i m m e d i a t e p a y m e n t . T o a n o t h e r it may permit o f
a little latitude and it m a y s u f f i c e if p a y m e n t is m a d e w i t h i n
a day or t w o . T h e d i f f e r e n c e b e t w e e n the t w o will remain
unless it is settled b y t h e B o u s e o f Lords' . Y e t again a w o r d
m a y m e a n o n e thing in o n e c o n t e x t and a n o t h e r thing in
a n o t h e r c o n t e x t . T h u s ' m o n e y ' may be l i m i t e d t o the m o n e y
in y o u r purse and cash at bank or it m a y include m o n e y
o w i n g t o y o u for d i v i d e n d s or rents 2 . Y e t again a w o r d may
m e a n o n e thing in o n e s i t u a t i o n and a n o t h e r in another. T a k e
t h e w o r d s 'insulting behaviour'. B l o w i n g a w h i s t l e on the
Centre Court at W i m b l e d o n m a y be 'insulting behaviour'; but
b l o w i n g it at t h e C u p Final at W e m b l e y w o u l d not. It
d e p e n d s o n t h e m e a n i n g w h i c h y o u y o u r s e l f c h o o s e t o give t o
'insulting 1 . T h e d i f f e r e n c e is n o t t o b e s e t t l e d by authority,
b u t b y individual c h o i c e 3 . C o n s t a n t l y y o u will find ordinary
p e o p l e giving d i f f e r e n t meanings t o t h e same w o r d . This gives
full s c o p e t o t h e lawyer.
2 Acquiring skill
H o w then can y o u acquire this c o m m a n d o f language s o
m u c h to be desired? Forgive me here i f 1 give o f my o w n
e x p e r i e n c e . When I w a s y o u n g , I did n o t think m u c h in
w o r d s . At O x f o r d 1 s t u d i e d Mathematics. N o n e e d for words
there. T h e t o o l s I u s e d then w e r e n u m b e r s , letters and
s y m b o l s . T h e y were lifeless things w i t h o u t m e a n i n g or s o u n d
t h e necessary t o o l s o f the scientist b u t n o t o f the lawyer.
B u t w h e n I was called t o the Bar, I had t o b e c o m e proficient
with words. I did it b y drawing on m y reserves o f English
1. Machine u Catty [ 1 9 2 1 1 1 A C 3 7 6 .
2. Perrinv Morgan [ 1 9 4 3 ] AC 3 9 9 .
3. Brutus v Cozens [ 1 9 7 3 ] A C 8 5 4 .
6
Command of language
literature. These I had acquired at the Elizabethan Grammar
School to w h i c h I w e n t daily. I had read much o f Shakes-
peare and many o f our poets and novelists whilst still at
school. All m y prizes from the age of 11 were for English. 1
have them still, b o u n d in handsome leather, with the school
crest and the date A D 1 5 6 9 . The titles in succession are th
Great Authors, Macaulay, Carlyle, and Milton. Reading these
and others provided the essentials: a w i d e vocabulary of
words, and an understanding o f the meaning attached t o
them by the masters o f the language. C o m e t o think of it,
that is h o w the makers o f the great O x f o r d Dictionary set
about their task to discover meanings. T h e y compiled it
'from over five million q u o t a t i o n s derived from English
works o f literature and records o f all kinds'. T h e n glance a t
the Dictionary itself t o see t h e result. It shows that the
meaning o f a word m a y change from d e c a d e to decade, from
place to place, even from one person t o another. It m a y
d e p e n d on the subject-matter under discussion or the contejct
in which it is used. S o y o u have a challenging task ahead if
y o u are to acquire c o m m a n d o f language: and to say what
meaning any particular w o r d has in any particular case.
N e x t , I had to practise continually. A s a pianist practises
the piano, so the lawyer should practise the use o f words,
both in writing and b y word o f m o u t h . Again, forgive a
personal reminiscence. In chambers, if asked to advise, I took
infinite pains in the writing o f an o p i n i o n . I crossed out
sentence after s e n t e n c e . I w r o t e t h e m again and again. Seek
to make your opinions clear at all costs. Make them positive
and definite. N o t neutral or vacillating. My pupil master told
me early on o f the client's complaint: 'I w a n t y o u r o p i n i o n
and not your doubts', and o f Sir G e o r g e Jessel's character-
istic saying: '1 may be wrong and s o m e t i m e s am, but I am
never in doubt'.
8
2 The interpretation of statutes
9
WORDS OF AUTHORITY 939
WORDINESS. S e e CUTTING OUT THE CHAFF, REDUN- (per Lord Diplock)J "]T]he bank may and should
DANCY & VERBOSITY. be held liable for gratuitously, officiously, and
affirmativelya surfeit of adverbs never hurt
WORD-PATRONAGE is "the tendency to take out anyonetelling the government how to place its
one's words and look at them, to apologize for grasp upon its customer's funds." Schuster v.
expressions that either need no apology or should Banco de Iberoamrica, SA., 475 So. 2d 253, 255
be quietly refrained from" CMEVl at 733). E.g., (Fla. Dist. Ct. App. 1985) (Schwartz, J., dis-
"Hopefullyto use an ugly wordthe dilemma senting) J "Even a murderer can look forward to
will be solved by the proposed legislation." In a parole after 17 years, in a manner best charac-
his preface to MEU2, Cowers indulged mildly in terized by that much-misused word, 'hopefully.'"
word-patronage when he wrote: "This was indeed In re Clements, 440 N.W.2d 133, 137 (Minn. Ct.
an epoch-making book in the strict sense rf that App. 1989) (Irvine, J., dissenting). See if you
overworked phrase" (p. iii). The tendency is not will.
at all uncommon:
w o r d processing, n. & adj., should be spelled as
"He came to the conclusion then that the best
two words thus.
way of exploiting this invention was to use the
mills himself and to what has been described as
WORDS OF ART. S e e TERMS OF ART.
'trade grind'rather a lengthy split infinitive."
Young v. Wilson, (1955) 72 R.P.C. 351, 353
WORDS OF AUTHORITY Few reforms would im-
(Ch.D.) (per Upjohn, J.). See SPLIT INFINITIVES.
prove legal DRAFTING more than if drafters were
"You have got to so frame yours so that it 'sells
to begin paying closer attention to the verbs by
the Court,' to use the term of the marketplace,
which they set forth duties, rights, prohibitions,
which I abhor . . . Karl N. Llewellyn, A Lec-
and entitlements. In the current state of common-
ture on Appellate Advocacy, 29 U. Chi. L. Rev.
law drafting, these verbs are a horrific muddle
627, 630 (1962). In that sentence, the which-
and, what is even more surprising, few drafters
clause is ambiguous: it may refer either to mar-
even recognize this fact. The primary problem is
ketplace or (as Llewellyn intended) term of the
shall, to which we must immediately turn.
marketplace. S e e REMOTE RELATIVES.
A Shall This word runs afoul of several basic
"The language of this description is perhaps not
principles of good drafting. The first is that a word
very elegant, for it homologates (if I may use
used repeatedly in a given context is presumed to
that horrible word) the noun 'dealer' with the
bear the same meaning throughout. (Shall com-
participles which appear in the parenthesis."
monly shifts its meaning even in midsentence.)
Walter Chadburn and Son Ltd. u. Leeds Corp.,
The second principle is strongly allied with the
(1969) 20 P.&C.R. 241, 241, 246 (CA.).
first: when a word takes on too many senses
"The House of Lords does now enjoyif that be and cannot be confined to one sense in a given
the word-the freedom not to follow its own document, it becomes useless to the drafter.
previous decisions . . . ." Leslie Scarman, En- (Shall has as many as eight senses in drafted
glish LawThe New Dimension 5 (1974). documents.) The third principle has been recog-
"The last sentence is rather clumsy, but what I nized in the literature on legal drafting since the
mean is this." Gianville Williams, Learning the mid-19th century: good drafting generally ought
Law IS (11th ed. 1982). to be in the present tense, not the future. (Shall
- "Although it is a clich to say so, it is in every is commonly used as a future-tense modal verb.)
way encyclopedic: every form of every descrip- In fact, the selfsame quality in shall-the fact
tion in connection with any Queen's Bench ac- that it is a CHAMELEON-HUED "WORDcauses it to
tion is here." Charles Joseph, Book Review, 83 ~!
Law Soc. Gazette 3667 (1986). viujauc CC.U ui .uuoc piu^ipica.
A variation of this mannerism occurs when one How can shall be so slippery, one may ask,
defends one's choice of words in anticipation of when every lawyer knows that it denotes a man-
the reader's distaste: "The Maryland statute ap- datory action? Well, perhaps every lawyer has
pears to be unique in the proper use of that much heard that it's mandatory, but very few consis-
misused word." Williams u. Patuxent Inst, 347 tently use it in that way. And, as a result, courts
A2d 179, 187 (Md. 1975)./ "The 'philosophy" of in virtually every English-speaking jurisdiction
the Act (if I may be forgiven this neologistic use) have heldby necessitythat shall means may
was to allow a legally aided party to civil proceed- in some contexts, and vice-vers. These holdings
ings only one successful bite at the legal cherry have been necessary primarily to give effect to
. . . ." Megarity v. Law Soc'y, {1982] AC. 81,103 slipshod drafting.
What, then, are the meanings of shall? The
94FI W O R D S O F AUTHORITY
shadings are sometimes subtle, but the following One solution to the problem that shall poses is
examplesall but the last two from a single set of to restrict it to one sense. This solutioncalled
court rulesillustrate the more common shades: the "American rule" because it is an approach
followed by some careful American draftersis to
"The court . . . shall enter an order for the use shall only to mean "has a duty to." Under the
relief prayed for . . . ." The word imposes a American rule, only the first of the seven bulleted
duty on the subject of the sentence. items above would be correct. The drafter might
"Service shall be made on the parties . . . ." well say that a party shall send notice, but not
The word imposes a duly on an unnamed per- that notice shall be sent by the party. (If this
son, but not on the subject of the sentence "has-a-duty-to" sense is the drafter's convention,
("service," an abstract thing). must serves when the subject of the sentence is
"The debtor shall be brought forthwith before an inanimate object.) This solution leads to much
the court that issued the order." The word greater consistency than is generally found in
seems at first to impose a duty on the debtor American drafting.
but actually imposes it on some unnamed actor.
Another solution is the "ABC rule," so called
"Such time shall not be further extended except
because, in the late 1980s, it was most strongly
for cause shown." The word shall gives permis-
advocated by certain Australian, British, and Ca-
sion (as opposed to a duty), and shall hot denies
nadian drafters. The ABC rule holds that legal
permission (i.e., it means "may not"). This prob-
drafters cannot be trusted to use the word shall
lemshall being equivalent to mayfrequently
under any circumstances. Under this view, law-
appears also in the statutory phrase No person
yers are not educable on the subject of shall, so
shall. Logically, the correct construction is No
the only solution is complete abstinence. As a
person may, because the provision negates per-
result, the drafter must always choose a more
mission, not a duty. See (E).
appropriate word: must, may, will, is entitled to,
"Objections to the proposed modification shall or some other expression.
be filed and served on the debtor." The word
This view has much to be said for it. American
purports to impose a duty on parties to object
lawyers and judges who try to restrict shall to
to proposed modifications, though the decision
the sense "has a duty to" find it difficult to apply
to object is discretionary. This amounts to a
the convention consistently. Indeed, few lawyers
conditional duty: a party that wants to object
have the semantic acuity to identify correct and
must file and serve the objections.
incorrect shalls even after a few hours of study.
"The sender shall have fully complied with the That being so, there can hardly be much hope of
requirement to send notice when the sender the profession's using shall consistently.
obtains electronic confirmation." The word acts
Small wonder, then, that the ABC rule has fast
as a future-tense modal verb (the foil verb
been gaining ground in the U.S. For example, the
phrase being in the future perfect). Many read-
federal government's Style Subcommitteepart
ers of this sentence, however, encounter a MIS-
of the Standing Committee on Rules of Practice
CUE in reading the sentence, which confusingly and Procedurea subcommittee that since 1991
suggests that the sender has a duty. has worked on all amendments to the various
"The secretary shall be reimbursed for all ex- sets of federal court rules, adopted this approach,
penses." The word expresses an entitlement, disallowing shall, in late 1992. (This came after
not a duty. a year of using shall only to impose a duty on the
"Any person bringing a malpractice claim shall, subject of the verb.) As a result, the rules have
within 15 days after the date of filing the action, become sharper because the drafters are invari-
file a request for mediation." Courts interpre- ably forced into thinking more clearly and spe-
ting such a rule or statute often hold that shall cifically about meaning.
is directory, not mandatorythat it equates
with the softer word should. There is, of course, a third approach: to allow
shall its traditional promiscuity while pretending,
So much for the "Golden Rule" of legal drafting, as we have for centuries, that preserving its chas-
which Reed Dickerson put this way: "[T]he compe- tity is either hopeless or unimportant. Of course,
tent draftsman makes sure that each recurring that approach breeds litigation, as attested in 76
word or term has been used consistently. He care- pages of small-type cases reported in Words and
fully avoids using the same word or term in more Phrases, all interpreting the word shall. As long
than one sense . . . . In brief, he always ex- as the mass of the profession remains unsensi-
presses the same idea in the same way and always tized to the problems that shall causes, this ap-
expresses different ideas differently." The Funda- pears to be the most likely course of inaction.
mentals of Legal Drafting 2.3.1, at 15-16 (2d ed. For more on the use of must as opposed to shall
1986). under the ABC rule, see (c). For further dis-
introduction to Lega! English
Ric-ardo ChiesaUniveridad Austral -
in Legal English, deictic words are typically used for textual, intertextual and
situational reference and to express position within the text.
E.g. .
This agreement
These presents
The directors then in office (i.e., at some time already mentioned
[anaphoric reference] or to be identified below in the text [cataphoric
reference]).
All prices specified below
The aforementioned officers of the Corporation
The foregoing restrictions shall not apply...
All petitions shall be handled as follows. ...
Usual combinations
hereby thereby
herein therein
hereof thereof
hereon thereon
hereto thereto
herefrom therefrom
hereunder thereunder
herewith therewith
hereinbelow thereinbelow
hereinabove thereinabove
hereinafter thereinafter
hereafter thereafter
therefor
wherefrom thereat
whereupon thereupon
Various constructions that have become hallmarks not only of Legal English
but also of the language of bureaucracy or officialese.
Emphatic forms:
Strings in which not all the elements mentioned are true co-hyponyms of one
another that is one of them ranks "higher" or "lower" than one or more of the
others, according to different degrees of specificity.
- Any person or individual (In the language of the law, "person" is the
superordinate term, comprising "legal persons/entities" (e.g. a
company) and "individuals" (i.e., physical persons), so that the
conjunction "or" as used in the phrase does not really express either
opposition or addition).
introduction to Legai English 6
' Ricardo Chiesa - Universidad Austral -
E.g.
E.g.
I further declare that, unless this power of attorney be expressly
revoked by me, ..
Once a resolution has been passed by the entire Board of
Directors as described above,...
E.g.
Unless otherwise agreed,...
As provided in Article 3 below,...
Where necessary, an audit shall be conducted...
To the extent permissible by applicable law,...
Whenever required or appropriate,...
E.g.
E.g.
Any shareholder may grant a proxy to any other shareholder having
voting powers.
Lessee may not do any repairs that may cause damage to the leased
premises.
E.g.
All payments shall be made in U.S. dollars.
The Licensee shall not disclose any confidential information about the
products.
E.g.
All notices between the parties must be sent by certified mail, ...
All candidates must be of legal age and residents of the piace
where the committee is located.
E.g.
The Board need not consult with the Executive Committee on
director compensation matters.
15. Frequent use of the ZERO ARTICLE and the pronoun "it" to
identify the parties to an act
E.g. If Seller shall not agree to a reduction in the price, Purchaser may give
notice to it whereby it decides to terminate the agreement.
- After Grantor has executed the deed, he shall deliver same to the
bank.
17. CAPITALIZATION
V Capital initials are often used to identify animate or inanimate entities that
are regarded as unique or especially important, or in order to distinguish
such entities from others of the same class that are alien to the subject
matter of the text or to highlight certain terms that have been previously
defined in the instrument.
IN WITNESS WHEREOF,...
BE IT REMEMBERED THAT...
(BE IT) RESOLVED THAT...
SO ORDERED.
WHEREAS,...
PROVIDED ALWAYS THAT...
introduction to Lega! English
Ric-ardo Chiesa Univeridad Austral -
CONDITION CONCESSION
> As opposed to
> Similarly
> Likewise
> be the same as
> be different from / differ from ...
in that...
Introduction to Lega! English
Ricardo Chiesa - L'niversicad Austral
> As opposed to
> Similarly
> Likewise
> be the same as
> be different from / differ from ...
in that...
introduction to Lega! English
Ric-ardo Chiesa Univeridad Austral -
N.B. Many legal terms originate In the common speech or general language,
but acquire a specific meaning when used in the field of Law.
Collocation
The fact that a word has two or more meanings. Such different meanings may
usually be traced to psychological, historical or metaphorical associations.
E.g. (in Genera! English) "question" as "an interrogative sentence" and as "an
issue or matter to be discussed or settled"; "to cry" as "to shed tears"
and as "to call in a loud voice"; "neck" as a part of the human body and
the "neck" of a bottle; "field" as "an area of land" and as "a branch of
knowledge or area of activity".
(in Legal English) "to execute" as "to complete in proper form, by signing
and/or delivering", and as "to put to death in compliance with a judicial
death sentence"; "force" as in "irresistible force" and as in "in full force
and effect".
Homonyms
Two or more words which are identical in form (= spelling) and pronunciation
but have different meanings.
E.g. (in General English) "bear" (the animal) and "bear" (= tolerate); "bank"
(where you keep your money) and "bank" (of a river or lake); "firm" (=
a company) and "firm" (= fixed in place).
E.g. (in General English) "green", "orange", "blue", "purple" are all
hyponyms of the superordinate term "color" and co-hyponyms of one
another.
Lexical Gap
E.g. In Spanish there is no single word to cover the terms "hermano" and
"hermana", so there is a lexical gap there, whereas in English the term
"sibling" covers both "brother"' and "sister".
E.g. (in Legal English) No single word exists that can cover the meaning of
the terms "legacy", "devise" and "bequest".
Cognates
Words in different languages that are similar to each other in form and
pronunciation, but totally or partially different in meaning. "Partial
false cognates" are those words that sometimes behave as cognates
and sometimes as faise cognates, depending upon their different
meanings.
N.B. When it comes to Legal English and Legal Spanish, most 'false
cognates' are only 'partial faise cognates'.
ASSIGNMENT:
1. Deictic terms
2. Set phrases or "fossilized" forms
3. Doublets or triplets
4. Use of modal verbs
5. Use of passive voice
6. Reduced or verbless clauses
7. Inversion of word order
8. Use of "such" and "said"
9. Provisos
10. Emphasis and redundancy
11. Use of "legal" prepositions and prepositional phrases
12. Capitalization
Introduction io Lega! English ]9
; Ricardo Chiesa - Universidad Austral -
39 1.3 REGISTERED OFFICE AND AGENT. The location of the registered office of
40 the Company shall be:
41
42
43 1.4 TERM. The Company shall continue for a period of [insert term length]
44 unless dissolved by:
45
46 (a) Members whose capital interest (as defined in Article 2.2) exceeds 50 percent
47 vote for dissolution; or
48
49 (b) Any event which makes it unlawful for the business of the Company to be
50 carried on by the Members; or
51
52 (c) The death, resignation, expulsion, bankruptcy, retirement of a Member or the
53 occurrence of any other event that terminates the continued membership of a
54 Member of the Company; or
55
56 (d) Any other event causing a dissolution of a Limited Liability Company under the
57 laws of the State of N e w York.
58
59 .
60 1.5 CONTINUANCE OF COMPANY. Notwithstanding the provisions of
61 ARTICLE 1.4, in the event of an occurrence described in ARTICLE 1.4(c), if there
62 are at least two remaining Members, said remaining Members shall have the right to
63 continue the business of the Company. Such right can be exercised only by the
64 unanimous vote of the remaining Members within ninety (90) days after the
65 occurrence of an event described in ARTICLE 1.4(c). If not so exercised, the right
66 of the Members to continue the business of the Company shall expire.
67
68
69 1.6 BUSINESS PURPOSE. The purpose of the Company is to engage in any
70 lawful act or activity for which a Limited Liability Company may be formed
71 pursuant to the Limited Liability statutes of the State of New York.
72
73
74 1.7 PRINCIPAL PLACE OF BUSINESS. The location of the principal place of
75 business of the Company shall be: [insert principal place of business address] or at
76 such other place as the Managers from time to time select.
77
introduction to Lega! English
Ric-ardo ChiesaUniveridad Austral -
78 1.8 THE MEMBERS. The name and place of residence of each member are
79 contained in Exhibit 2 attached hereto.
80
81
82 1.9 ADMISSION OF ADDITIONAL MEMBERS. Except as otherwise expressly
83 provided in the Agreement, no additional members may be admitted to the Company
84 through issuance by the company of a new interest in the Company without the prior
85 unanimous written consent of all of the Members.
86
87
88 ARTICLE 2
89 Capital Contributions
90
91
92 2.1 INITIAL CONTRIBUTIONS. The Members initially shall contribute to the
93 Company capital as described in Exhibit 3 attached to this Agreement. The agreed
94 value of such property and cash is $ [insert amount] _ .
95
96 2.2 ADDITIONAL CONTRIBUTIONS. Except as provided in ARTICLE 6.2, no
97 Member shall be obligated to make any additional contribution to the Company's
98 capital.
99
100 (...)
101
102
103 ARTICLE 4
104
105 Management
106
107 4.1 MANAGEMENT OF THE BUSINESS. The name and place of residence of
108 each Manager is attached as Exhibit 1 hereto. By a vote of the Members holding a
109 majority of the capital interests in the Company, as set forth in Exhibit 2 as amended
110 from time to time, the Members shall elect so many Managers as the Members
111 determine, provided, however, that they shall elect no fewer than two Managers and
112 that one Manager shall be elected by the Members as Chief Executive Manager.
113
114
115
introduction to Lega! English
Ric-ardo ChiesaUniveridad Austral -
116 4.2 MEMBERS. The liability of the Members shall be limited as provided under the
117 laws of the New York Limited Liability statutes. In no event shall Members that are
118 not Managers take any part whatever in the control, management, direction, or
119 operation of the Company's affairs, nor shall they have any power whatsoever to
120 bind the Company. The Managers may from time to time seek advice from the
121 Members, but they need not accept such advice, and at all times the Managers shall
122 have the exclusive right to control and manage the Company. No Member shall be
123 an agent of any other Member of the Company solely by reason of being a Member.
124
125
126 (...)
127 Bookkeeping
128
129 6.1 BOOKS. The Managers shall maintain complete and accurate books of account
130 of the Company's affairs at the Company's principal place of business. Such books
131 shall be kept and maintained on such method of accounting as the Managers shall
132 select. The company's accounting period shall be the calendar year.
[THE LANGUAGE OF CONTRACTS]
WITHNESSETH THAT:
WHEREAS, Licensing Services, Inc., a corporation duly formed and existing under the
laws of the State of Delaware, having offices at 400 Marriott Drive, Nashville, Tennessee
("LS"), has acquired and now owns all of the ABC trademarks ("ABC Trademarks") to
LICENSEE under the April 1, 1982 Trademark License Agreement between LICENSEE
and LICENSOR'S predecessor, and
WHEREAS, LS and LICENSOR have entered into the Trademark License Agreement
effective as of December 1, 2001 (hereinafter called "2001 Agreement") wherein LS
granted LICENSOR the right to sublicense ABC Trademarks to certain companies,
including LICENSEE, and
ARTICLE 1: DEFINITIONS
1.1 "Products" shall have the same meaning as specified in the 2001 Agreement.
1.2 "ABC Trademarks" shall mean all Argentine trademark registrations and
applications and unregistered trademarks owned by LS relating to Products as presently set
forth in Exhibit A attached to this Agreement and all future pending, issued or common law
ABC trademarks in Argentina relating to Products.
1.3 "Net Sales Price" shall have the same meaning as specified I the 2001 Agreement.
VERSION AS OF MAY 17, 2004
ARTICLE 2: LICENSE
In accordance with the 2001 Agreement, LICENSOR hereby grants to LICENSEE the right
and license to use ABC Trademarks to manufacture Products in Argentina and to use ad
sell such Products worldwide unless otherwise modified by LICENSOR. LICENSOR
hereby also grants to LICENSEE the right to "ABC" as a trade name.
3.2 With thirty (30) calendar days of the end of each calendar half year (June 3 and
December 31), LICENSEE shall pay t LICENSOR in U.S. Dollars (or in such other
currency or at such other place as LICENSOR may LICENSOR may specify) at Akron,
Ohio (USA), the licensee fee provided for in subparagraph 3.1 for the use of ABC
Trademarks, calculated as of the last day of each calendar half year, as follows.
(i) Net Sales Price for that calendar half year shall be determined and then
converted to U.S. Dollars at the average rate of exchange in effect during
such period at which one U.S. Dollar may be purchased for the least amount
of pesos and available for payments of this kind, and
(ii) The rate of the license fee shall the be applied to Net Sales Price for that
calendar half year in U.S. Dollars and the result shall be the license fee
which is payable by LICENSEE for that calendar half year.
3.4 The payment to LICENSOR of the fees provided for in this Agreement shall be free
of any taxes, charges, currency conversion, or remittance fees, whether levied by the
Central, regional, or municipal governments in Argentina, or by other authorities, except
for such tax which may be expressly required by the laws of the governments in Argentina
to be paid or withheld for the account of LICENSOR. The payment of any such income
taxes levied upon or withheld from fees, compensations, or other payments due to
LICENSOR, and the filing of any information or tax returns with respected thereto, shall be
the responsibility of LICENSEE, who shall be liable to LICENSOR with respect to an
amounts, fines, or penalties arising out of or resulting from ay failure, delay, or error in
VERSION AS OF MAY 17, 2004
discharging the aforesaid obligation. LICENSEE shall promptly provide LICENSOR with
receipts of payments relating to such income tax and such other documentation as
LICENSOR reasonably request.
3.5 If the effective rate of the rate of the Argentine tax applicable to fees, compensation
and payments hereunder, should exceed the then current United States tax rate applicable
to the same form of income, then LICENSEE shall gross up the payments so that
LICENSOR is held harmless from and is indemnified for any reduction in net proceeds of
any fee, compensation or other payments hereunder caused by and resulting from the
effective tax rate of Argentina exceeding the applicable United States tax rate.
The parties shall cooperate with each other in establishing proof of use of ABC Trademarks
as required to permit renewal of ABC Trademarks ad shall comply with all requirements to
ensure that use of A.BC Trademarks by LICENSEE hereunder inures to the benefit of LS.
The application for ad renewal of ABC Trademarks shall be solely as the discretion of LS.
5.1 LS and its representatives, specifically LICENSOR or its designee, shall have the
right, at its expense, to inspect at all reasonable times any Products in relation to which
ABC Trademarks are to be used hereunder, as well as the methods of manufacture, in order
to assure adequate quality control and compliance as to specifications including, without
limitation, raw materials are furnished by LS approved suppliers; LS approved materials,
manufacturing specifications ad formulae are used; and LS approved designs, including
tread designs, are used with certain ABC Trademarks.
5.2 LS may request LICENSEE to send reasonable quantity of samples of Products with
ABC Trademarks at LICENSEE'S costs to either LICENSOR or LS.
5.3 Should LS ever notify LICENSEE that any of the Products fail to comply with LS
formulae, standards, specifications and instructions, LICENSEE shall either promptly
proceed to correct such non-compliance in accordance with LS's instructions or shall cease
the manufacture of such Products using ABC Trademarks so long as any non-compliance
continues and is not corrected.
6.1 LICENSEE acknowledges that ABC Trademarks are part of the goodwill of LS and
LICENSOR business and that they shall not at any time door suffer to be done any act or
VERSION AS OF MAY 17, 2004
thing which will in any way impair LS proprietary rights in and to ABC Trademark. It is
understood that, except for the right to use ABC Trademarks to identify Products,
LICENSEE hereunder shall not acquire and shall not claim, whether by reason of this
Agreement, by use or otherwise, any right, title, or interest, direct or indirect, in ABC
Trademarks belonging to LS.
6.2 LICENSEE shall not se any marks or names identical with or confusingly similar to
ABC Trademarks, except as specifically agreed by the parties in writing, and shall not raise
or caused to have raised any questions concerning or objections to the validity of the ABC
Trademarks or to the right of LS thereto, on any grounds whatsoever.
6.4 LICENSEE shall not do any act or thing which might injure the reputation of any
ABC Trademarks or affect adversely LS right therein.
6.5 LICENSEE shall comply with all laws and regulations applicable to ABC
Trademarks, and its registration and use, in the jurisdictions of the LICENSEE operations.
LICENSEE shall assume the cost of all claim adjustments required to be made on any
Products which it manufactures with ABC Trademarks and sells for the local market or
exports. LICENSEE shall, upon request, reimburse LS or its designee for the cost of any
claim adjustments required to be made by LS or its designee to any Products produced by
LICENSEE. The purpose of this provision is to assure LS and LICENSOR'S worldwide
reputation for quality and service.
ARTICLE 8: INDEMNITY
LICENSEE shall indemnify and defend LICENSOR and LS and their officers, directors,
employees, subsidiaries, affiliates, and licensees from and against any and all claims, suits,
actions, causes of actions and proceedings of any kind or nature and shall hold LICENSOR
and LS and their officers, directors, employees, subsidiaries, affiliates and licensees
harmless from any damages injuries and costs, including attorney fees, costs of defense or
other expenses of any kind or nature arising from or relating to any Products with ABC
VERSION AS OF MAY 17, 2004
Trademark manufactured or sold, or any services rendered by LICENSEE, and any use by
LICENSEE of Firestone as a trade name.
9.1 The parties shall jointly obtain all governmental and other approvals, consents,
licenses and registrations required under law for the execution, effectiveness and
performance of this Agreement and any renewals thereof on a worldwide basis.
9.2 In the event of any change, during the term of this Agreement in the laws,
requirements, or regulations of any government which impairs the performance of
obligations under this Agreement, or in the event of the withdrawal or modification of any-
material approval given by any government with regard to this Agreement, each of the
parties shall have the right, after consultation, to suspend performance of the affected
obligations until such time as full performance can be resumed.
10.1 This Agreement shall be deemed effective as of April 1, 2004, and shall continue in
effect until (i) its tenth (10th) anniversary, (ii) termination of the 2001 Trademark
Agreement, (iii) transfer at any time by BSA Holding, Inc. (BSA), LICENSOR'S parent
company (except to a BSA subsidiary or affiliate) of its equity interest of BSA drops below
51%, or (iv) BSA otherwise loses control of LICENSEE, whichever fist occurs.
(a) If to LICENSOR:
ABC, LLC,
400 Marriot Drive
Nashville, Tennessee 37214
VERSION AS OF MAY 17, 2004
Attention: President
Facsimile Number:
(b) If to LICENSEE:
Attn.: President
Telefax N: 54 11 4322-4189
Or to such other addresses as may be from time to time furnished in writing by any party
thereto.
12.1 NO ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; provided, however, that
LICENSEE may not transfer or assign this Agreement, in whole or in part, without the
prior written consent of LICENSOR.
12.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereby. Neither this Agreement
nor any part hereof may be amended, waved, changed or in any way modified except in
writing executed with the same formality as this Agreement.
12.3 SEVERABILITY. In any provision of this Agreement is declared null and void or
otherwise becomes ineffective, the remaining provisions shall nevertheless continue in full
force and effect and be enforceable in accordance with their terms, in which case the parties
shall use their best efforts to agree on an equitable provision replacing the provision
declared null or void.
12.4 NO WAIVER. The failure by ether party to insist upon strict performance of any
covenant or condition of this Agreement, in any one or more instances, shall not be
construed as a waiver or relinquishment of any such covenant or condition in the future but
the same shall be and remain in full force and effect.
12.8 This Agreement terminates all prior agreements between the parties relating to the
subject matter covered by this Agreement.
ARTICLE 13:TERMINATION
13.1 Upon failure of LICENSEE to make any payment as herein provided within thirty
(30) days after it shall have become due and written notice demanding such payment shall
have bee given or in the event of the insolvency or bankruptcy of LICENSEE, or if
LICENSEE'S business shall be placed in the hands of a receiver, trustee or other custodian
or liquidator, LICENSOR may at its option cancel and terminate this Agreement. In
addition to any other rights or remedies which it may have, either party may also cancel and
terminate this Agreement if the other party shall default in the performance of any
obligation hereunder on its part to be performed and such default shall not have been
remedied within thirty (30) days after notice requiring such remedy.
13.2 Upon termination of this Agreement (i) LICENSOR shall have an option to
purchase all or any portion of LICENSEE'S then existing inventory of Products bearing
ABC Trademarks at a commercially reasonable price; (ii) LICENSEE shall immediately
remove from tire molds all references to ABC Trademarks; and (iii) LICENSEE shall as
soon as practicable, but no later than six (6) month after termination, discontinue all use of
or reference to ABC Trademarks and the use of Firestone as a trade name; provided that, in
the event that LICENSOR has elected not to exercise its option to purchase LICENSEE'S
then existing inventory of Products bearing ABC Trademarks under this paragraph,
LICENSEE may continue to sell it's the existing inventory of Products bearing ABC
Trademarks until disposal of all such inventory.
VERSION AS OF MAY 17, 2004
13.3 As soon as practicable but no later than three (3) months after termination,
LICENSEE shall cease the use of the name "Firestone" in its business affairs and shall
execute and deliver to LICENSOR all documents requested by LICENSOR to evidence the
termination of LICENSEE'S right to use the name "Firestone" and the reservation of such
rights to LS.
13.4 The termination of this Agreement shall not relieve LICENSEE of its liability to pay
LICENSOR any amounts due or accrued pursuant to this Agreement to the date of such
termination.
13.5 The rights conferred upon the parties by the provisions of this Article 13 shall be in
addition to, and not in lieu or limitation of, any other legal rights and remedies of the
parties.
LICENSOR and LICENSEE hereby appoint ABC Holding, Inc., ("ABC") a Nevada
corporation having its principal place of business at 400 Marriott Drive, Nashvilie,
Tennessee 37214, USA, as their agent to collect and disburse any and all fees due under
this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed in English on the dates specified below.
LLC.
By:
Date:
iqW< H. pf ME
, '"O s
S z
Presentation to President President may: See Chapter IV.E. for 3
o-i T3
n
tu
Sign bill into law; or sources of Presidential 0
Veto bill; or Documents. 3p en
01
O
C
Do nothingbecomes law after 10 days, unless Congress has adjourned ("Pocket veto"). r-t CL h-4
O a
m
Overriding a Veto Two-thirds vote of each chamber required to override a presidential veto. Congressional Record. D
D o u b l i n g ai final c o n s o n a n t s 200
m o s t nearly approximates literary style. a n d syllable bears the main, stress ( h e n c e occur, oc-
amplification b y synonym has b e a t out of curred dffer. djfercd).
bur S o m e of t h e m o r e
rhetorical fashion- f o r hundreds of years. Al- c o m m o n l y m i s s p d l e i w o r d s - non aiready-
though o n e m i g h t well title a diaxds will Last mentiottcd-axe t h e s e biased, busing (q.v.), com- i
Win and Testament; bated, focused. benefited transferred.
if o n e were to write art
o p i n i o n c o n s t r u i n g t h a t document, it would:
b e b e t t e r to- begim. " I n this appeal w e a r e d o u b t . A_ Doubt that 5- doubt whether: Ther
called; uponr to- c o n s t r u e t h e disposition of f o r m e r is used primarily in n c g a r i v e sentences-
in-Jakrr Doc's will"
realty Johrr rather than "in arid in questions. E g . . " W e do n o r doubt thai
DotS last w{U and testament.'.' h a d t h e rime spent i n f e d e r a l prison, n o t beert-
terms tend condi-
Yet o n e m i g h t well write credited to a n y sentence, appellant: w o u l d be-
tionsu if b y t h e inclusion, of both words a mentitled. t o h a v e t h a t prison, l i m e credited.,
a d d e d . n u a n c e is intended. That, is t h e test in a g a i n s t h i s state s e n t e n c e . " Daube whether i s
used i n positive assertions^ E g . . ' W e doubt-
ordinary legal prases I s a shade of m e a n i n g
whether such conduct falls-within t h e a m b i t of
supplied b y t h e second on third synonym, or
a p p e l l a n t ' s duties as- s u p e r v i s o r . "
is k j u s t s o m a ch deadwoodZ."
B . Followed b y a Negative. Doubt c a n b e a;-
D O U B L I N G . O F ' FINAL- CONSONANTS. c o n f u s i n g word w h e n f o l l o w e d b y a negative,
Unaccented syllables in inflected words are as Iru "T doubt w h e t h e r t h e Court will n o t take
sometimes spelled differently in A m i and in [ h e f u r t h e r step w h e n n e c e s s a r y . " T h i s s e n -
BrE- Americans generally do not double a t e n c e m e r e l y states t h a t t h e w r i t e r t h i n k s
final A- before t h e inflectional suffix, whereas c o u r t s will take t h e f u r t h e r step of which, h e
the British generally do. Thus initialed and ini- speaks.
tiaiing (Ami) but initialled and iniiiaOmg (BrE).
A n u m b e r of o t h e r words follow this para- d o u b t l e s s l y ) . Doubtlessly is incorrect for
digm, e.g., cancel. labeL marshal parol signal doubtless (a mild expression of certainty), no
total, travel a n d unravel doubt (a stronger expression of certainty), or
.The British always double the final conso- undoubtedly (the strongest of these three
nant after a full vowel in wortis such as kid- expressions of certainty). T h e w o r d doubtless is
napped. -ing a n d worshipped. -ing. In the U.S., itself a n adverb (the F r a m e r s doubtless feared
kidnapping is preferred over kidnaping (see t h e executive's assertion of a n i n d e p e n d e n t
a b d u c t i o n ) as a n exceptional facta (cf. for- military authority u n c h e c k e d by t h e p e o p l e ) ;
matted. formatting), though worshiped, -ing fol- t h e r e f o r e , doubtlessly is u n n e c e s s a r y . E.g.,
lows the general American rule, programmed " H a d Zellars been.driving in t h e w r o n g lane
and programming are the preferred spellings h e w o u l d doubtlessly (read doubtless| have had a
on both sides of the Atlantic, the single -m- little m o r e time and a b e t t e r c h a n c e to avoid
spellings being secondary variants in A m i : striking the child."/ " W h i l e it is not impossi-
for the probable reason underlying this Amer- ble to say precisely w h e n m e n first arrived in
ican inconsistency, see p r o g r a r o ( m ) e r . North America, doubtlessly read doubtless] the
The British-American split is seen also in original Americans e m i g r a t e d f r o m Asia at
words.. like 'jewct(l)cr, pupil(l)aae. and least fifteen thousand y e a r s ago- and entered
travc!(l)er, t h e British pre/erring two -f-s t h e c o n t i n e n t during t h e Pleistocene epoch,
rather t h a n t h e o n e used by Americans. Writ- or Ice Age, by way of t h e Bering Land
ers- and editors should m a k e themselves Bridge." See d e a r l y .
aware of these m i n o r differences in spelling,
and be wary of inserting sic (q.v.) when quot- d o u b t of for douht about; E.g.. " T h e lan-
ing a foreign t e x t . g u a g e of t h e statui- eaves n o - d o u b t o / [ r e a d
Apart from w e p i s ending in -I- and excep- about) its i n t e n t . " S HTPALLAGE.
tions- noted [kidnapping, programming, and
worship(p)ed). ail English-speaking countries d o w a b l e = entitled to d o w e r , q.v. E.g. "A
follow the s a m e rules on doubling. When a w i f e is dawable in equity of all lands in w h i c h
suifix beginning with a vowej is added, the h e r h u s b a n d possessed a b e n e f i c i a l interest ao
final c o n s o n a n t of t h e word is re --ated only t h e l i m e of his death."/ " A c c o r d i n g to t h e
if 1) t h e v o w d sound p r e c e d i n g r e conso- e a r l y English c o m m o n law, t h e w i d o w of a
nant is represented by a single l>. er (hence trust b e n e f i c i a r y was not dockable i n t h e trust
i-'d. bidding b u t head, heading); or (2) the final p r o p e r t y because o n e cbuM riot be seised of a n
WORDS OF AUTHORITY 941
cussion of the general problem, see Robert use the premises for general office purposes; or (fa)
Eagleson & Michele Asprey, Must We Continue The tenant may use the premises only for general
with "Shall"? 63 Austl. L.J. 75 (1989); Robert office purposes. Which meaning is correct? Per-
Eagleson & Michele Asprey, We Must Abandon haps somebody should litigate the question so
"Shall," 63 Austl. L.J. 726 (1989); Jim Main, that we might all find out.
"Must" Versus "Shall," 63 Austl. L.J. 860 (1989); In private draftingcontracts as opposed to
Michele Asprey, Plain Language for Lawyers 149- statutes, rules, and regulationssome drafters
52 (1991); Joseph Kimble, The Many Misuses of consider must inappropriately bossy. The word
"Shall," 3 Scribes J. Legal Writing 61 (1992); may strike the wrong tone particularly when both
Michele Asprey, "Shall" Must Go, 3 Scribes J. parties to a contract are known quantities, such
Legal Writing 79 (1992). For a contrary (and un- as two well-known corporations. It seems unlikely
persuasive) point of view, see J.M. Bennett, In that, for example, an American car manufacturer
Defence of "Shall," 63 Austl. L.J. 522 (1989); J.M. and a Japanese car manufacturer engaging in a
Bennett, Final Observations on the Use of "Shall," joint venture would want the word must to set
64 Austl. L.J. 168 (1990). forth their various responsibilities. Indeed, it
A major cause of the litigation over shall, as seems odd to draft one's own contractual respon-
Kimble observes in his thoughtful essay, is the sibilities with must: a lawyer for Ford Motor Com-
relative strength of the word. That is, what are pany is unlikely to write Ford must . . . Ford
the consequences when somebody fails to honor a must . . . Ford must . . . . The word will is
contractual or statutory duty? If it's a contractual probably the best solution here. See (D).
duty, does a failure to honor a sAaZI-provision On the other hand, in a consumer contract or
always amount to a breach? Does it entitle the other adhesion contract, must is entirely appro-
other party to rescind? If it's a statutory require- priate for the party lacking the bargaining power.
ment, does a violation invalidate the proceedings? In the 1994 revision of its form residential lease
Or is it merely a directory provision? This unclar- a document signed by a million Texas residents
ity about consequences is a continuing problem in every yearthe Texas Apartment Association
any system that we adopt, however linguistically changed the traditional shall to either must or
principled that system might be. will. The landlord became we, and the tenant
B. Shall not. Under the American rule (see A), became you, so that the form reads as follows:
this phrasing works as long as it means "has a You must . . . You must . . . You must. . . We
duty not to." Thus, "Thou shalt not steal" works, will. . . We will... We will.... Although one
but not "The money shall not remain in the court's might think that the resulting tone would be
registry for more than 30 days." In the latter irksome, none of the typical users on whom the
example, the proper choice is either must not or form was tested expressed that thought. Indeed,
may not. See (F). the distinctive use of must for the tenant and will
C. Must. Under the American rule (see A), this for the landlord is very much in keeping with the
word means "is required to" and is used primarily natural rhetoric of an adhesion contract. And it
when an inanimate object appears as subject of certainly informs the consumer precisely what his
the clause. Hence, "Notice must be sent within 30 or her obligations are.
days." Must is a useful device to uncover client misun-
Under the ABC rule (see A), must denotes all derstandings about obligations. Thus, some law-
required actions, whether or not the subject of yers use it despite the danger of a bossy tone.
the clause performs the action of the verbe.g.: And, because present-tense drafting reduces the
"The employee must send notice within 30 days."/ incidence of must, the musts that remain in a
"Notice must be sent within 30 days." given document willin many contextsoffend
The advantage of must over shall is that its no one.
meaning is fastened down more tightly in any D. Will. This word, like any other, ought to
given sentence. Take, for example, a sentence bear a consistent meaning within any drafted
from a widely used commercial lease: "The prem- document. Two of its possible meanings are dis-
ises shall be used by the tenant for general office cussed in (c): it may express one's own client's
purposes and for no other purposes." Once one obligations in an adhesion contract (as in a resi-
decides to follow the ABC rule, the dilemma in dential lease), or it may express both parties'
meaning becomes clear: are we mandating some- obligations when the relationship is a delicate one
thing with that sentence (use of the premises), or (as in a corporate joint venture).
are we merely limiting the tenant's freedom to There is still a third possibility: if a future
use the premises for other purposes? One might tense really is needed, as to express a future
revise the sentenceremoving the PASSIVE contingency, then will is the word. But this cir-
VOICEin either of two ways: (a) The tenant must cumstance in not common, as the best drafting
942 w o r d s of c o n v e y a n c e
should generally be in the present, not the future, . . "), use only words of authority. An adherent
t e n s e . S e e STATUTE DRAFTING CC). of the American rule would make each of the
E. May. This term, very simply, means "has above items the employee shall; an adherent of
discretion to; is permitted to." It should be the the ABC rule would make each one the employee
only term used to denote these senses. Thus, one must.
would never write the licensee is free to sell as The careful drafter might consider adopting ei-
many units as it desires, as opposed to the licensee ther of the following glossaries, preferably the
may sell as many units as it desires. latter:
Sometimes, may should replace shalle.g.: "No
American Rule
person shall [read may] set off fireworks without
the prior authorization of the fire marshal." That shall = has a duty to
sentence does not negate a duty; it negates per- must = is required to [used for all re-
m i s s i o n . S e e (A) & STATUTE DRAFTING (C). quirements that are not du-
F. Must not; may not. These two are nearly ties imposed on the subject of
synonymous. Must not - is required not to. May the clause]
not = is not permitted to. For those following the may not = is not permitted to; is disal-
ABC rule (see A), the phrase must not is usually lowed from
the more appropriate wording. must not = is required not to; is disal-
Some drafters avoid may not because it is some- lowed from; is not permitted
times ambiguousit can mean either "is not per- to
mitted to" or (esp. in AmE) "might not." For exam- may = has discretion to, is permit-
ple, an application to a law school states: "This ted to
office may not consider applications received after is entitled to = has a right to
April 30." Some readers would take that to mean will = (expresses a future contin-
t h a t the office has discretion whether to consider gency)
applications received after April 30, whereas oth- should = (denotes a directory provi-
ers would infer that some rule or regulation pro- sion)
hibits the office from doing so.
G. Is entitled to. This is the wording for ex- ABC Rule (Preferred)
pressing an entitlement. It means "has a right
to." E.g., "The guardian ad litem shall [read is must = is required to
entitled to] be reimbursed for expenses reasonably must not = is required not to; is disal-
incurred." See (A). lowed
H. Using a Consistent Glossary. A disciplined from; is not permitted to
drafter uses words of authority consistently. This may = has discretion to, is permit-
involves, in part, restricting the vocabulary by ted to
which one sets forth duties, rights, prohibitions, may not = is not permitted to; is disal-
and entitlements. The drafter who proliferates lowed from
ways of wording duties, for example, flirts with is entitled to = has a right to
the danger that somebody interpreting the docu- will = [one of the following:]
mentmost disastrously, in courtwill presume a. (expresses a future contin-
that a difference in wording imports a difference gency)
in meaning. b. (in an adhesion contract,
Yet drafted documents are commonly riddled expresses one's own cli-
with inconsistencies. It is not uncommon, in ent's obligations)
American contracts,' to find the following varia- c. (where the relationship is a
tions in paragraph after paragraph: delicate one, expresses
both parties' obligations)
"The employee shall follow . . . should = (denotes a directory provi-
"The employee agrees to follow . . . ." sion)
"The employee is to follow . . . ."
"The employee must follow . . .
words of conveyance are the wordsusu. DOU-
"The employee understands her duty to follow
BLETS, TRIPLETS, AND SYNONYM-STRINGSthat ef-
fect a transfer of ownership in a deed. In a war-
"The employee will follow . . . ."
ranty deed, for example, the standard words of
"It is the responsibility of the employee to follow
conveyance are convey and warrant ox grant, bar-
gain, and sell; in a quitclaim deed, the words
The better practice are usu. remise, release, and forever quitclaim or
is tills : after the lead-in (which convey and quitclaim.
states, "The parties therefore agree as follows:
UM?ri
BY KENNETH A. ADAMS
Making rule developed many exceptions.
I
F YOU want to take control of your T h e rule and its exceptions have largely
c o n t r a c t d r a f t i n g , as opposed t o
regurgitating tire language of whatever Sense of b e e n a b a n d o n e d i n c o m m o n usage,
"shall" is rarely used to indicate future time
Shall'
c o n t r a c t models you happen to b e and barely survives in its modal form. But
using, you'll have to decide what to d o in t h e stylized c o n t e x t of the language
with "shall." of business contracts, which as a general
Here's where things currently stand in matter use only the third person, "shall"
the United States: O n the one hand, t h e continues to serve as the principal means
corporate bar is addicted to "shall," wich of expressing obligations.
business contracts e x h i b i t i n g r a m p a n t
overuse of the word. O n t h e other h a n d , The Problem of Overuse
some commentators o n legal writing insist But contract drafters use "shall" to do
that "shall" be dropped from contracts. T h e more t h a n express obligations. They use
most vocal is perhaps Bryan Garner, editor it t o express future time, and "shall" also
in chief of Black's Law Dictionary a n d A fresh look at an overused word creeps into contexts that have nothing to
author of many books on legal writing. A do w i t h expressing obligations or future
useful statement of that view, albeit from t i m e . It s o m e t i m e s seems as if drafters
an Australian perspective, can be found in Background suspect t h a t a c o n t r a c t provision won't
"Plain Language for Lawyers," by Michle be enforceable unless it features "shall."
M. Asprey. "Shall" is a modal auxiliary verb. 1 Unlike
T h i s overuse of "shall" plays a large
the other auxiliaries ("be," "do," "have"),
I take a position b e t w e e n these two role in d i s t a n c i n g c o n t r a c t prose from
t h e modal auxiliaries (including "shall,"
extremes. 1 recommend t h a t for purposes standard English, thereby making it harder
"will," "must," "can," and "may") supply
of business contracts you use "shall" only to read. But it also helps render drafters
information about the mood of the main
to impose an obligation o n the subject of oblivious to nuances that come into play
verb that follows. "Shall" was originally a
a s e n t e n c e i n other words, to convey in deciding w h o should.be doing what in
full verb (like "eat," "walk," and "play")
the meaning "has a duty to." Eliminating a given provision, and why.
conveying obligation or compulsion, b u t
"shall" entirely has little to recommend it: T h i s can result in disputes. A perennial
now it's used only as an auxiliary, as is t h e
replacing it with "must" would eliminate q u e s t i o n in c o n t r a c t i n t e r p r e t a t i o n is
modal "will," which originally carried the
a u s e f u l d i s t i n c t i o n a l o n g with o n l y w h e t h e r a given provision constitutes a
sense of volition.
negligible risks; lawyers find "must" unduly c o n d i t i o n or an obligation, if a provision
bossy; and "will" is even less promising as B e c a u s e o b l i g a t i o n s and i n t e n t i o n s
uses language associated with obligations
an alternative. concern future conduct, and because
as in "Widgetco shall submit any Dispute
there's n o true future tense in English,
N o t i c e t o A c m e n o later t h a n five
"shall" and "will" also came to be used with
Business Days after delivery of the related
future time.
invoice"-a court would likely hold that it
K e n n e t h A. A d a m s is a consultant and Tire result is drat "shall" and "will" have constitutes an obligation, even if it would
speaker on contract drafting, a lecturer at the each been used to express modal meanings make m o r e sense as a condition.
University of Pennsylvania Law School, and and to mark future time. A rule arose, a t
author of "A Manual of Style for Contract least in England, to distinguish these two
Drafting" (ABA 2004). His Web sice and blog uses: to express future time, use "shall" when Disciplined Use of'Shall'
are at www.adavtsdrafdng.com. This column in the first person and "will" when in the O n e way to address overuse of "shall" is
will be on hiatus in the coming months and will second or third person, and do die reverse to through more disciplined use of the word,
resume in mid-2008. convey modal meanings. This cumbersome i advocate using "shall" only to express an
GC NEW YORK Thursday, October i 8 2001
NEW YORK LAW J O U R N A L
T
iic phrasing of time frames and under the law. "12 months starting on the date of
deadlines in legal lexis is not Naturally, in many legal relation- execution of this Agreement" speci-
always dear. Translation can be ships, there is a dominant party fies a segment in which the starting
problematic when ihe manner in who sets time frames, with liltle.or no point is the execution dale and the
'wliicli.a lime frame is to be computed room for discussion being left to the finishing point is set 12 months there-
is not- understood, which is mainly weaker party (as is the case with the after. The initial point is definite
due lo ihe iftind-boggliiig effect often lawmaker fixing terms of imprison- insofar as the execution date is set
caused by Ihe adverbial adjuncts used ment, or a powerful utility setting forth in (he agreement itself! In con-
10 establish ihe relevant parameters. 'deadlines in its contract of adhesion). trast, a provision reading "Vendor
Considering the .particular weight In all cases, however, (here is a party reserves the right to collect any sums
that'lime-related provisions'carry in "beneficiary" (who benefits front) and due at any time following tertiiinatiori,
legal texts, such as contracts, corpo- i party "obligor" (who is bound by) of this Agreement for any reason"
rate documents, or evert laws, we contains a term of indefinite duration
translators limy find it useful at the ("at any time") starting on a dale
comprehension : >s(age . preceding "...The law does not favor which is also indefinite, since the
translation proper, to try to "picture" date of termination cannot be ascer-
tinte frames in our minds, hither than unpredictability. Along tained in advance (i.e., at Ihe time
render them mechaiiically into the with manner/degree (or when the agreement is ehlered into).
target -Iniiguagc. "This article focuses extent), and location, time
on time frames as they are usually Different Directions
worded in Ijiiglislt texts, with Spanish is one of the four
translations being provided to illus- all-important variables in Forward-looking Terms
trate certain key concepts. Time frames as described above
the distribution of power can be either forward-looking or
Time Frames: Purpose and that is inherent in all acts backward-looking. "Forward-looking"
Different Types under the law..." terms point to the future from a given
Why .should time frames be estab- point of origin. Their purpose is to
lished In (he first place? In the legal establish obligationi lo be fulfilled or
world, die interplay between any two the established time frame. We will requirements to be satisfied by a
given parlies (a corporation and its come back lo these notions of "bene- party. Since the party bound by (he
shareholders, two contracting parties, ficiary" and "obligor" in respect to time frame is not allowed to postpone
the government and Ihe community, time periods when we discuss Ihe performance indefinitely, it is subject
etc.) entails a "balance of forces." direction of lime frames below. to a deadline. It follows that all for-,
Mere, the- parlies normally wish to if represented graphically, time ward-looking terms are necessarily
make it cleat' that rights will be frames would either appear as seg- maximum, it must be noted, however,
acquired, enjoyed, enforced, termi- ments (with both Ihe point of origin that the reverse is not necessarily1
nated, or waived, aiid (hat obligations and the finishing point being speci- true, since not all maximum terms are
will be assumed, performed, dis- fied) or semi-straight lines (with only "forward-looking" as will be dis-
charged, or waived other Chan "at the origin being specified), fii law, the cussed later in this article (see
will," i.e., within parameters thai pro- former are much more frequent than Prohibitions).
vide a sense of order and security to a (he latter, because frames resembling Forward-looking terms can be
relation that would otherwise be semi-straight lines signify indefinite broken down into the following three
chaotic front (he temporal perspec- duration, which is an exceptional fea- notions, stated in chronological
tive. In other words, the law does not ture in legal transactions. order: inception (i.e.. beginning),
favor unpredictability. Along with in addition, (he initial point used duration, and deadline. However,
manner degree (or extent), and loca- as an opening parameter may be def- forward-looking terms focus on the
tion. lime is one of the Tour all- inite or indefinite as to (he date of deadline rather than anything else, so
impnrtant variables in lite distribution occurrence. For example, a descrip- the linguistic expression of the iime
of power that is inhrent in all acts tion of a time period that is worded frame gives prominence to the
Table 1: English
2.) "AH monthly payments shall he
made no later than ten business
Deadline Duration Inception days subsequent to the first busi-
wilhin {a term / period of) from ness day of each month."
no! more than ninety days. etc. as from
in no event more than of In sentence I." (he initial point
not lo exceed ("receipt of the Plan") appears to be
as of
indefinite as to the dale of occur-
no(() later than after rence, but most probably the lexi con-
at the latest following tains a cross-rererence to another
(a period) not greater than subsequent to provision selling forth the deadline
on or before' for receipt or die plan. In sentence 2.
by the initial point ("first business day")
can be ascertained by merely looking
until / up to (and including /
at a calendar. Possible translations
but'excluding)
into Spanish of die italicized terms in
sentences I and 1 include, hut are noi
Table 2: Spanish limited lo. the following:
Fecha Limite Duracin Comienzo 1.) "... dentin de las dos meses de su
dentro de (un plazo / perodo / de recepcin/denm de los dos meses
posteriores o sn recepcin /dentin
no superior a lapso; el trmino de) desde
de un plaza nn superior o das
no mayor de noventa das, etc. a partir de meses desde su recepcin."
que no podr exceder / superar despus de
que no podr prolongarse ms con posterioridad a 2.) "... dentin de los diez das hbiles
all de (das) siguientes a siguientes al primer da hbil de
antes de transcurridos.(x cada mes / a ms tardar, el dcimo
das, etc.) da hbil cantada a parar del
primer da hbil de cada ates."
a ms tardar
al (da x) When the duration is implied,
el da x o con anterioridad a l / purely temporal markers (on or
o en cualquier momento before by, not later than) are used,
anterior followed by a specific point in time,
hasta (x fecha inclusive) and the indication of the inception
point is optional. For example:
end of the segment. Therefore, the than) or the purely temporal marker 3.)"Requcsls for cancellation of
relevant niarker for the deadline no(l) later than are used. The specifi- membership" shall be sent by
appears in Front position. cation of the inception is inevitable so e-mail or fax an or befare Jtrne. JO."
Tables I and 2 show possible (hat it is clear how (he term is lo be
markers in English and Spanish. computed. For example: 4.)"Business forecasts shall be made
available to Supplier by the fifth
Markers I.) "Licensor will approve the Annual day following the end of each
The forms listed in Tables I and 2 Sales Plan within two months of quarter in each Sales Year."
cannot be freely combined. When receipt thereof."
the duration is made explicit, "quan- !n sentence 3. the inception point
titative" markers (within, not more is not mentioned and becomcs clear
(he target text flows more naturally hidden in sentence 7: first, the fact that deadline" for giving notice is the thir-
and, most importantly, meaning is the period is to be computed back- tieth day counted back wards from (lie
neither added nor lost. wards ("advance"); and second, die intended dale of termination.
fact that the period is minimum ("at A frequent translaiion error con-
Backward-looking Terms least"). Since these terms benefit sists of translating these terms by
These lime frames point to the past the purchaser (who may be "dam- using markers that mistake the
from a given paint in the future, with aged" by the changes to the price list) "reverse deadline" for a future dead-
Ihe inception beirig set al some future and franchisee (who may not wish the line proper. Thus, an erroneous
dale which may be certoin or uncertain agreement to be terminated), they are Spanish translation for sentence 7
al the time the text is created. These necessarily minimum. As such, and in would read "...mediante notificacin
terms can be classified into two distinct contradistinction to forward-looking escrita cursada al FranquiGiado a los
groups: a) terms as requirements for terms, they represent timelines fliat the treinta das," ni which the period is
notices to lie given; and b) terms during notifying party must not step onor it mistakenly understood to run for-
which prohibitions ore imposed or will be breaching its duty tnc give wards (presumably, from the dale
rights may not be exercised. proper advance notice. when the impossibility of remitting
As to the inception, it is uncertain in dollars arises) rather than backwards
Notices both cases above, for the context (from the intended date of termina-'
Group A ( which practically shows that the price increases in sen- tion). And we would be making a
monopolizes the use of backward- tence 6 or the termination upon impos- comprehension mistake if we under-
looking terms, is comprised of time sibility of remittance of foreign stood the omission of phrases like "al
frames fried for the benefit of a parly currency specified in sentence 7 are least" to mean that notice may be
(the recipient of the notice) that will contingent events. Therefore, the effec- given only on the thirtieth day pre-
subsequently suffer (broadly tive date for the price changes or the ceding termination. Such an assump-
speaking) some kind of damage, loss, termination date cannot be ascertained tion would be illogical from a legal
or deprivation. These frames. corre- in advance, and may never occur at all. point of view, because iiiccpljo"
spond to what is known as preavisos But if the notifying party contemplates dates and due dates arc parameters
in many Spanish-speaking countries. these events happening, then it must marking the beginning and/or the end
They balance the right of one party choose/decide on a future dote of of periods within which to do some-
(the sender) to cause this damage or occurrence and count the notice thing. Thus, correct translations for
loss with Ihe right of the damaged period from that date backwards. sentence 7 include: "...mediante
party (the recipient) to have advance Again, it follows that the use of notificacin escrita cursada a!
riotice of it. Consider these examples: markers, such as at least or not less Franquiciado con una antelacin
than can be dispensed with (and anticipacin (mnima) de treinta
(i.) "Any increase in the prices as set freely omitted or added in Ihe transla- das" or "...con (no menos de) treinta
out in the Price List shall be sub- tion), since these periods are not seg- das de antelacin / anticipacin."
mitted by Seller to Purchaser at ments, but semi-straight lines
least forty days in advance of their pointing backwards from (lie Prohibitions
effective dote." intended origin. Thus, the notifying Group B, discussed earlier, is
party may use any portion of (he comprised of lime frames to be
7.) "in the event that remittance of timeline before the length of the term counted backwards from a given
U.S. dollars to the United Suites is counted backwards, but not on or point, during which a party is for-
not possible under the laws of Ihe after the dale when the retro-compu- bidden or denied the right to do
Territory, Franchisor may termi- tation ends, because the point at something. Unlike litne frames set as
nate this Agreement upon thirty which the computation ends operates requirements for notices, these terms
days' writteu'notice to Franchisee." as a sort of "reverse deadline." In may be minimum, fixed, or maxiinhtn.
other words, in sentence 7, For Therefore, the ose of markers, such
Sentence 6 is much more explicit example, there is nothing to prevent as at least or maximum, does make a
in that it brings to light two features the franchisor from giving 40, 60, or difference. For example:
of backward-looking terms that are more days' notice, but the "reverse