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Drafting tip: Avoid “minimize” and “maximize”

Contract drafters* sometimes include provisions that require a party to minimize (or maximize) something. That could be bad news, however, because it might provide ammunition to an aggressive litigation counsel who argues that the term left no wiggle room, and therefore anything more than the absolute minimum (or less than the absolute maximum) constituted a breach.

* Including one student in the recent take-home final exam for my contract-drafting course

EXAMPLE: Suppose that in a confidentiality agreement, a drafter includes this language: The Receiving Party will minimize the number of people to whom it discloses Confidential Information. If the receiving party were to disclose Confidential Information to even one person who wasn’t absolutely necessary, the disclosing party might later try to make hay out of that fact.

Instead, consider different wording, such as (for example) The Receiving Party will endeavor to minimize the number of people to whom it discloses Confidential Information.

For more suggestions about “categorical” statements to avoid, see this piece.

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