Defining this Agreement

Many contract drafters, including myself, prefer to refer in contract provisions to the contract by using in this Agreement We’re talking about redundancy here. (with Agreement as a defined term and hence capitalised). This blog addresses this habit.

Many drafters define the term this Agreement (or, equally, this Deed, this Amendment, et cetera) in the introductory clause. Defining the term is, as such, not necessary: the mere article this in this agreement (used anywhere in the document) obviates the need for a defined term, because what other agreement would be referred to?
This is even more obvious if in the body text, an entire agreement provision is included stating that the Schedules and Annexes form an integral part of this Agreement and references to this Agreement shall include its Schedules and Annexes. Theoretically, the term this agreement could be interpreted to refer to that particular sentence or contract clause (e.g., the arbitration ‘agreement’) but (i) whether there is any relevancy in it at all, plus (ii) the likelihood that a party argues that this agreement refers to a part only, plus (iii) the likelihood of a court accepts this interpretation, is very remote. Despite its being redundant, I personally use Agreement as a defined term.

If you do define it, do so in the title line on the first contract page or in the recitals. Do not define (or repeat or summarise its defined scope) in the definitions article (and if you do, then never add provisions about preceding or subsequent communications or how any subsequent statements may or may not become binding: a definition should never contain operative wording – read my previous blog on best practice principles related to drafting the text of a definition (click here)). If anything needs to be elaborated about it, do it in an interpretation section that also explains other references in the Agreement, or in an entire agreement clause in the miscellaneous part.

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