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British lawyers sometimes use the term “for the avoidance of doubt” or “for clarity.” I’ve started sometimes using “For emphasis” instead. As an example, here’s part of a warranty provision that I’m drafting for use in the upcoming revision of my course materials:

For emphasis: The Provider (i) is not warranting or guaranteeing the future performance of any deliverable; but (ii) is committing to take the actions stated in this Clause if a deliverable fails to comply with a warranty about the state of the deliverable as delivered.

(The bold-faced emphasis is in the clause itself.)

This falls under the heading of serving the reader: Working to educate — and if necessary, persuade:

  • the other party’s contract reviewers, to help get the contract to signature sooner;
  • the parties’ business people who have to carry out the contract; and
  • perhaps someday, a judge or jury,

all using as little of the reader’s time as possible.

Yes, brevity is laudable. But more importantly, drafters should strive to optimize the reader’s use of his- or her time, to reduce how long it takes for the reader to grasp what the parties agreed to, while also reducing the risk that a reader will form a misimpression, especially in an “edge case” (an unusual situation).

And that’s where judiciously adding a few words of explanation can help serve the reader.

Some will respond that drafters shouldn’t clutter up their contract with such so-called “throat clearing.” But brevity isn’t the paramount goal here.

Contract drafting shouldn’t be what software people call code golf: a competitive game of trying to write the shortest possible computer program (or here, contract), using the fewest words possible, the way golfers try to get around a course using as few strokes as possible.

Sure, code golf can be fun — but the resulting “work product” can be very difficult for readers to puzzle through; see the examples in the Wikipedia article linked above, which notes that: “Because golfing languages compete for extreme brevity, their design sacrifices readability, which is important for practical production environments, and therefore they are often esoteric.” (Emphasis added.)

Clients want contracts signed sooner rather than later, and they want to be able to understand them. That’s where readability beats brevity.

Moreover, many contract drafters are pretty busy: They typically don’t have a lot of time to craft precisely the minimal phrasing to cover various edge cases (tech-speak for unusual situations) using as few words as possible.

So again: Judicious explanations, for the benefit of future readers, can be a happy compromise.

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Barf clauses: Don’t write them

See this 2016 post, which I’ve updated to reflect my current usage of “barf clause” as pithier than “wall of words.”

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Drafters of online employment- and consumer contracts might want to try to plan for consumers and employees to claim that they couldn’t read an arbitration provision because it was too tiny to read on their smartphones. That happened in a 2023 California decision: A court rejected an employer’s petition to compel arbitration of an employee’s claim of racial discrimination (among other things), in part because:

  • When the employee was hired, she had to complete an online onboarding package that included an arbitration provision.
  • The employee asserted that she did not own a computer and completed the onboarding process on her Apple iPhone 6 smartphone.
  • The employer asserted that the employee could have expanded the display on her phone to make the arbitration provision bigger.
  • The court was not impressed, remarking that the employer “cite[d] to no evidence in the record that [the employee] could have or knew how to perform such tasks.”

See Hasty v. Am. Auto. Ass’n of N. Calif., Nev., & Utah, No. C097674, slip op. at 10, 17 (Cal. App. Dec. 21, 2023) (affirming denial of petition to compel arbitration; emphasis in original).

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State requirements, not just intentions

In an Oklahoma case, DXP hired Grubb as an executive. His employment agreement stated that he and DXP intended to set up a new company, of which Grubb would own 10% and have the right to require DXP to buy him out at a price pegged to the value of the company’s business. But the employment agreement didn’t require DXP to form the new company.

Grubb and DXP grew the business but DXP never did form a new company. When Grubb asked DXP to buy out his interest in (what was supposed to be) the new company, DXP refused to do so because there was no new company.

The district court granted summary judgment in favor of DXP on Grubb’s claim for breach of contract. The Tenth Circuit reversed and remanded, on grounds that there was a triable issue whether DXP had breached the implied covenant of good faith and fair dealing. See Grubb v. DXP Enterprises, INC., No. 22-5073, slip op. (10th Cir. Oct. 30, 2023).

Lessons: It would have been better for Grubb:

1.  if Grubb’s employment agreement had required the formation of a new company, not merely stated an intention; and

2.  if Grubb had calendared a follow-up reminder to check on the formation of the new company — as the saying goes (from the nuclear Navy), “you get what you INspect, not what you EXpect.”

Caution: The implied covenant of good faith and fair dealing does not apply uniformly in all jurisdictions — for example, Texas law does not impose a general duty of good faith and fair dealing in contractual relationships; as explained by the Fifth Circuit, such a duty arises only in specific, limited circumstances.1

Be sure everyone who needs to sign, does 

Alabama’s supreme court affirmed summary judgment that an employee’s noncompetition covenant — set forth in a separate, later-signed addendum to the employment agreement — was unenforceable because it was not signed by the employer, whereas a state statute required signature by all parties because of the competition-restraining nature of the agreement. See Amanda Howard Real Estate, LLC v. Lee, No. 1210193, slip op. (Ala. June 30, 2023) (included in today’s Justia update).

  1. See Hux v. Southern Methodist University, 819 F.3d 776, 781-82 (5th Cir. 2016) (affirming dismissal of former student’s tort claim against professor); Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002): “A common-law duty of good faith and fair dealing does not exist in all contractual relationships. Rather, the duty arises only when a contract creates or governs a special relationship between the parties.” (Cleaned up, citations omitted.) ↩︎
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Wash. S. Ct.: “Within X days” – before, or after?

This week, Washington state’s supreme court decided Nelson v. P.S.C., Inc., which turned on whether a state statute’s reference to “within three years of the marriage” required a specified event to occur:

  • during the three years before the marriage; or
  • no later than the three years after the marriage.

The details aren’t important, only that the case had to be litigated — thanks, legislative drafters!

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