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In contracts, em-dashes and par­en­the­ses — used judiciously — can serve the drafter’s ultimate mission

Ken Adams says he doesn’t use em-dashes in contracts (or parentheticals either).  Ken cites Bryan Garner for the proposition that em-dashes can sub­sti­tute for parentheticals and colons, but he says he doesn’t use parentheti­cals in contracts, and he prefers to be consistent in using just colons.

In contrast: I use both em-dashes and par­en­thet­i­cals in contracts — albeit judiciously — when they serve the ultimate purpose of every contract: To educate, and some­times, to persuade, the reader. That reader might be the other side’s contract re­view­er; it might be a business person; perhaps someday, it might be a judge.

Both em-dashes and par­en­the­ses can be useful in contracts, because:

  • they’re eye-catching — em-dashes es­pec­i­ally so — which can help the other side’s con­tract reviewer more-quickly grasp what you’re trying to say (which in turn can help speed up the other side’s legal review and get the contract to signature sooner); and
  • they provide more visual separation than commas, which can help avoid later disputes about the meaning of complex clauses.

Here’s a before-and-after  example that I recently used in my contract-drafting course, when we re­vised a wall-of-words provision copied from the Verizon-Yahoo asset purchase agreement:

BEFORE:

2.15  Real Property.

(a) (i) Each material lease or sublease (a “Lease”) pursuant to which Seller (to the extent related to the Business) or any of the Business Subsidiaries leases or subleases real property (excluding all leases or subleases for data centers) (the “Leased Real Property”) is in full force and effect and Seller or the applicable Business Subsidiary has good and valid leasehold title in each parcel of the Leased Real Property pursuant to such Lease, free and clear of all Encumbrances other than Permitted Encumbrances, except in each case where such failure would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect and (ii) there are no defaults by Seller or a Business Subsidiary (or any conditions or events that, after notice or the lapse of time or both, would constitute a default by Seller or a Business Subsidiary) and to the Knowledge of Seller, there are no defaults by any other party to such Lease (or any conditions or events that, after notice or the lapse of time or both, would constitute a default by such other party) under such Lease, except where such defaults would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect.

AFTER, with em-dashes:

2.15  Real Property.

(a)  Except as provided below, the term “Lease” refers to a material lease (or a material sublease) under which Seller — to the extent related to the Business — or any of the Business Subsidiaries leases or subleases real property (the “Leased Real Property”).

[In class, we broke up the rest of the above “wall of words” into additional, shorter, subdivisions.]

To me at least, the em-dashes in the After version provide better visual sep­ar­a­tion than the parentheses in the Before version, and certainly more so than would have been offered by commas. This can be useful, and perhaps even critical, in seeking to avoid future dis­putes about the meanings of long-ish provisions.

More generally:  Ten years ago, Ken opined that “in a contract you don’t reason or explain. You just state rules.” Ken ‘s view would be fine if people were computers, which do exactly as they’re told: nothing more, nothing less. But people aren’t computers:

  • Humans’ memories are often short and can sometimes be “creative.”
  • A contracting party’s circumstances can change after the contract is signed — by the time a dispute arises, key employees and executives of a party could have different views of what’s important, and they might have forgotten (perhaps conveniently) what mattered during the con­tract negotiations.
  • And let’s not forget another important group of people: Business people, party counsel, judges, jurors, and arbitrators can be influenced by what they think is right and fair — and sometimes, the wording of the contract’s terms can make a difference.

The contract drafter’s ul­tim­ate mission, I submit, is to educate the reader and, where necessary, persuade them to do what your client now wants them to do.  Of course, you don’t want to overdo the use of em-dashes and parentheses, lest the draft be visually jarring to the reader.  But don’t be afraid to use em-dashes, or par­en­thet­icals, or footnotes, or whatever other language will help you get a work­able contract to signature sooner — and, maybe someday, help to persuade someone to do what your client wants.