(k) Use of synonyms and hendiadyses

For centuries, lawyers have strung together synonyms. Unfortunately, rare is the contract that does not include strings of two, three, or more synonyms or quasi-synonyms. (Pairs of synonyms or near synonyms are also referred to as “couplets” or “doublets” and groups of three as “triplets”). Below is a list of hendiadyses and old-fashioned synonym strings with their more concise equivalents.

old-fashioned

preferred

acknowledge and agreeagree
agree and covenantagree
any and allany; all
authorize and directauthorize; direct
by and betweenbetween
by or on behalf ofby
due and payable

due and payable (!)

each and alleach; every; any; all
each and everyeach; every; any; all
executed and deliveredexecuted; signed
for and on behalf ofon behalf of
free and clearfree
in full force and effecteffective; in force
if and to the extentto the extent
indemnify and hold harmlessindemnify
nterpreted, construed and governed bygoverned by
legal and validvalid
made and entered intoentered into
null and voidnull; void; (unenforceable)
over and aboveabove; in excess of
right, title and interestright
power and authoritypower; authority; is entitled
representations and warrantieswarranties; representations
shall and willshall; (will)
sole and exclusivesole
terms and conditionsterms; provisions
title and interesttitle
true and correctaccurate
[it is] understood and agreed[the parties] agree

The redundancy in most of the above doublets is clear. A few require some explanation: see the next paragraph. In preparing a mark-up, you should weigh the stylistic gains against the resistance you are likely to encounter; if the latter exceeds the former, you might want to stick with the old-fashioned wording.

Acknowledge and agree is unnecessarily long and even contradictory: the fact that what follows is written at length already implies a certain importance. There is no need to make it more important or ‘better enforceable’ by a specific acknowledgement. Instead, you should delete unimportant issues and address crucial or essential matters in a recital or a warranty. It may be contradictory when the acknowledged matter is a reality already: existing circumstances that would be expressly acknowledged (i.e. grandfathered) remain unaffected by obligations, which relate to the future. If, however, a carve-out must be made, this should be formulated as an exception (i.e. “the Parties agree…, except that…”) or a proviso (i.e. “…; provided, however, that…”). In addition, there is also no need to include agree, since doing without should work as well.

The same applies to understood and agreed (understood is redundant because everything that is agreed is implicitly understood as interpreted).

Agree and covenant is used to clarify that what follows is a covenant. In the common law, a covenant has a very specific meaning related to real estate. In normal transactions, the term is used for accessory, subordinate obligations (e.g. not to compete after a company sale, to continue a company’s operations in the ordinary course during the period between signing and closing) as opposed to the main contractual obligations (e.g. to sell and deliver, or to pay the purchase price). The accessory, subordinate nature of an obligation has no specific meaning.

By and on behalf of is superfluous wording: the authorisation by the person represented has the effect that the authorised person binds the former directly: the represented party is either bound or not at all, depending on the power of attorney but not depending on a contractual stipulation by or on behalf of.

Due and payable. In a normal order of performance, the payment of a purchase price falls ‘due’ upon performance by the seller, whereas it will often become ‘payable’ only (i.e. would normally be enforceable in court only) after the lapse of the agreed payment term (e.g.30 days after the date of invoice). The difference is that the purchaser has no action for breach of contract against the seller unless the seller is in default of its payment obligation. An event of default would exist when the payment term lapsed or if the seller could reasonably anticipate (on good grounds) that payment will not be made at such time. The distinction is relevant if a default would be based on other grounds than the contractual payment term or if the seller suspends or defers its own performance in view of events on the side of the purchaser.

Execute and deliver. ‘Executing‘ a contract means signing it. If you want to refer to doing what is agreed, you should say ‘performing‘. Under common law, delivering a deed after its execution is required for it to take effect.  This is in contrast to a simple contract, which is effective on execution. Delivery fixes the date from which the party is bound. “Delivery” however, in this context, does not mean “handed over” to the other party. It means delivered in the old legal sense, namely an act done expressing an intention to be bound. Any act of the party which shows it intends the deed to be binding on it is sufficient. There is no need for actual transfer of possession to the other party[30]. Since continental European legal systems merely require consent (i.e. offer and acceptance) as the prerequisite of agreement, ‘delivery‘ is unnecessary. Rather, the entering into force of all contracts should be made subject to the execution of the last one. Furthermore, other than in common law, a party may sue for specific performance as the default remedy, with a claim for damages as the secondary remedy. This means that a party can demand in court that the other party executes (and performs).

Free and clear. The terminology is used in warranties such as “The assets are free and clear from Encumbrances”. Nothing is added by the word clear.

In full force and effect. Often, the phrase in full force and effect is redundant: a duty or obligation under a contract, statute, regulation or policy is either existent (in force) or not, and it has either taken effect or not. In most cases, there is no point in distinguishing between force and effect. If the distinction is relevant, that would be because the contract, statute, regulation or policy that is referred to had both entered into force and been given retroactive or prospective effect. In such case, however, it is recommended that you spell out how the contractual obligation is effected.

If and to the extent. Since to the extent by definition implies if, leave out if and.

If and when. A standard phrase usually intended to weaken an expectation that the subsequent condition in the provision will be satisfied. Use if only. Similar combinations of conjunctions are: as and when; and unless and until.

Indemnify and hold harmless. These words are used in the context of liability for warranty claims or infringement of third party intellectual property rights. If you use them, rather be more accurate: indemnify Purchaser against claims and hold Purchaser harmless from costs and damages. This clarifies that the respective objects of indemnify and hold harmless differ. An indemnity is a procedural action to stand in court (and pay awarded damages) in place of the indemnified party. How this works differs from jurisdiction to jurisdiction. Also, in the context of a warranty (or representation) an indemnification is well understood to include an obligation to pay damages resulting from a ‘breach of warranty’. The phrase hold harmless would, in a literal interpretation, extend the indemnifying party’s obligation to compensate the other for more than merely damages, probably to relieve it even from any causation-related complications and probably also to ensure that its good name and reputation is by no means adversely affected. Despite such interpretation, most lawyers understand hold harmless to be a (redundant) repetition of its indemnify counterpart.

Interpreted, construed and governed by is used in choice of law clauses. The explicit distinction is redundant because principles of private international law will allow such distinction only if: (a) interpreting or construing parts of a contract is explicitly made subject to another law and then easily with the suspicion that such split (depeçage) is made somewhat fraudulently in deviation from mandatory law or public policies; or (b) the subject matter is otherwise not subject to party autonomy (e.g. provisions of company law or competition law which cannot be avoided merely by means of a contractual stipulation to that effect). Governed by is sufficient and adequate.

For instance, can you imagine that a court says: “The closest connection of this contract in terms of its qualification as a ‘service contract’ is with the Netherlands, but the interpretation of the same contract, however, is closer connected to Germany, and for that reason we will have the contract governed by two applicable laws“? I believe that this would be ridiculous.

Legal and valid. Many drafters qualify rights or obligations to be legal. Take for example a statement that a certain provision is “legally binding” (e.g. in an LOI, letter of intent). Whether or not this is the case, is something for the law to establish not the contracting parties. The doublet legal and valid is often found in warranties regarding legal and valid entitlement to an asset. In common law jurisdictions, contract drafts prepared during negotiations are normally stated to be “subject to contract“. This means that the document in question is in no way binding. Outside common law, this qualification does not add anything to what follows. Someone is either entitled to something or they are not; the validity may legitimately be requested to be warranted but such entitlement being legal is superfluous.

There is a common law distinction between legal or equitable ownership. A reference to legal, in the context of real property therefore refers to the distinction between owning legal rather than equitable title. In most circumstances there is no need to expressly refer to ‘legal’ or ‘equitable’ ownership but in any case an analysis of the rules of equity is beyond the scope of this book. Finally in popular usage, the term legal is sometimes contrasted with moral (not enforceable in court) obligations.

Made and entered into. A contract is not ‘made‘; it is the written reflection of consent between the parties (i.e. their actual, mental agreement) and therefore rather entered into by execution of the document.

Under common law a contract is considered not as a meeting of minds (as such) but rather as a bargain, which explains the requirement of ‘consideration’ for any promise. In common law, the bargain consists of an ‘offer’ and ‘acceptance’, which illustrates how the difference with civil law jurisdictions is not as significant as it may appear. Similar remarks could be made about entered into, making either of the two parts of the phrase redundant.

Power and authority. Power is not a word with a specific legal meaning. It is colloquial speech used in connection with the word authority. Other than in the context of power of attorney, it adds nothing to what authority (‘to represent’ or ‘to achieve a legal result’) already embodies.

Right, title and interest. A right is an entitlement to something, typically used in relation to intangibles (as opposed to tangible goods). Most often, merely right is meant by the phrase right, title and interest. Title refers to ‘being entitled’ but would in continental European jurisdictions refer to the title by virtue of which a party acquires or acquired the legal possession of a good or right (e.g. sale, succession, merger, but also lease, licence or mortgage). In a European context, interest has no legal significance other than that persons who fail to have a (legitimate) interest, will be declared inadmissible in their (court) action. In the common law, interest is a reference to certain (equitable or legal) property rights i.e. having a right in or over land.

Sole and exclusive. Sole and exclusive is ambiguous because both concepts exclude each other. Sole is used by a seller who appoints a (sole) distributor or agent. A sole distributor is the only distributor for the relevant market and the agreed products. It implies, however, that the seller may also sell its products in that market. If a distributorship is exclusive, the seller would not itself be entitled to sell or distribute its products in the agreed market.

Terms and conditions. Sometimes a contract clause starts with Subject to the terms and conditions of this Agreement. Obviously, terms and conditions refers to whatever is agreed in “this Agreement”. Simply referring to terms is sufficient and adequate; the word has no particular legal meaning; it may well include conditions, as well as warranties and even recitals of a contract. It would be equally meaningful to refer to ‘stipulations’ or to ‘provisions’. Strictly speaking, a reference to ‘obligations’ would be incorrect, since they exclude conditions (i.e. facts or circumstances to come into existence or not), warranties (i.e. statements of fact) and recitals (i.e. statements of essential facts that should not contain obligatory language). In virtually all jurisdictions, a ‘condition’ is an essential term that permits one party to terminate the contract if the condition is not satisfied.

Unless and until. Until means ‘up to’ (but excluding). Unless means ‘except when’ or ‘if not’. Until suggests the application of something up to a particular point in time or the event mentioned, after which this ‘something’ will not apply anymore; whilst unless implies a separation of something that applies and another thing that does not apply (by exception). Using both is like comparing apples and oranges.