The commonly used phrase for the avoidance of doubt makes something explicit that is already covered by the other wording of the contract but could (reasonably) be interpreted otherwise. It is drafted all too often.
For the avoidance of doubt (or equally, for the sake of clarity) is invariably used in connection with a preceding sentence or contract clause, which it attempts to further clarify. A contract drafter should avoid the overuse of for the avoidance of doubt.
In short, the message addressed ‘for the avoidance of doubt‘ is already within the contractual wording even though you don’t immediately see it, but because it is important it is made more explicit. More elaborately, for the avoidance of doubt should be used only if:
- either:(a)
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- the subject matter followed by the phrase is already covered by the preceding contract clause, but an informed, objective reader of the contract might not clearly interpret such subject matter to be included in (or excluded from) that contract clause; or
(b) there may be a contradiction or an overlap between the preceding contract clause and another provision in the agreement; and
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- considering the agreement as a whole, the subject matter is important enough to be addressed (i.e. not being aware of the to-be-avoided doubt may be a source of disputes or disappointment for the parties).
For example, a clarification ‘for the avoidance of doubt’ is desirable when the preceding sentence is relatively broad, or unspecific, and conceivably not of key importance, whereas the subject matter that is addressed for the avoidance of doubt is both specific and (relatively) important.
Clarification may also be desirable in the opposite case, if the preceding sentence contains restrictions of scope, which do exclude certain subject matters that may be considered to be included under the preceding sentence upon a prima facie reading of that sentence. An example is the grant of a software license, where for any required, underlying software applications (for the avoidance of doubt) the licensee should still obtain a license from a third party in order to be free to enjoy the full benefit of the software.
