1. (Non)sense of hendiadyses and quasi-synonyms

Contract drafting often entails the use of doublets and triplets. It is my impression that more often than not, those doublets or triplets (or hendiadyses and quasi-synonyms) lack merit. They are used because ‘everyone’ does, like and/or, the metaphor for laziness and vacuous writing.

This series of blogs is about those combinations of words. Have you encountered other ones? Let me know.

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. You should rather delete unimportant things and address crucial or essential matters in the recitals. 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. Nevertheless, if 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 …”). 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 may reasonably anticipate (on good grounds) that payment will not be made at such time. The distinction is relevant if a default should 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 contract after its execution is required to give the contract its effect. This is mostly a question of evidencing that delivery took place albeit that in the context of a transaction closing, common law lawyers generally appear to understand that delivery has taken place only after all closing documents are executed. 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).

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