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

This is part two of sense and nonsense about hendiadyses and quasi-synonyms. Do you know another one? Let me know.

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, there 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 of the 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 both entered into force and had been given retroactive or prospective effect. In such case, however, it is recommended that you spell out how the contractual obligation is affected.

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

Indemnify and hold harmless. The words are used in the context of liability for warranty claims. 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 the stead of the indemnified party. How this works out, differs from jurisdiction to jurisdiction. Also, in the context of a warranty (or representation) an indemnification is well understood to include an obligation to compensate damages resulting from a ‘breach of warranties’. 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 prevent that the good name and reputation is by no means adversely affected. Despite such interpretation, a normal lawyer understands 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 of mandatory law or public policies; or (b) the subject matter is anyhow not subject to party autonomy (e.g., provisions of company law or competition law cannot be avoided merely by means of a contractual stipulation to that effect). Governed by is sufficient and adequate. 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“?

Related Articles

Terms of Use

I hereby accept (or reconfirm my acceptance of) Weagree’ Terms of use, in which: