A Contract and/or of Fire

NOTE: This blog post includes a discussion and exploration of legal issues. The content is intended for educational purposes only, and is not intended to be legal advice. You should always consult with a licensed attorney about actions that could impair your legal rights.

Yes, with regards to the title of this post, Game of Thrones is off the air, and/or a dated reference, but so is the use of “and/or.” Why? Well for one (unimportant) thing, my use of it in the first sentence muddies the water, and makes it difficult for you to determine whether I am actually up-to-speed with cultural phenomena.1 For a second (and more important) reason, it can create uncertainty surrounding the relationships you have with customers, clients, vendors, and businesses.

As previously noted, the law — particularly as it pertains to business — often revolves around what kind of relationship exists between two parties. This relationship lays the groundwork for any terms of an agreement between the parties (and therefore should be included in any agreement between parties). Not only is it intuitive, but a contract that provides both parties to an agreement with a clear understanding of the terms of the agreement can help to provide legal protection to both parties. Clarity not only makes life easier, but it can help to reduce the occurrence and the expense of litigation.

Set aside different expectations that may arise in doing business with people from other cultures, or misunderstandings that are likely rooted in emotional and developmental differences, and we still find ways to confuse each other: “okay, to the left” (“my left or your left?”); “I need it sent to me by such-and-such day” (does that mean it needs to be dropped in a mailbox by that day, or that it needs to arrive by that day?); “can you read this?” (“aloud or to myself?”). And just remember, the people on the other side of the table from you can struggle with these same issues. Ultimately, each misunderstanding is an inefficiency that can snowball into catastrophic results. Luckily, many of these understandings can be avoided with additional information.

You may shudder to think back about grammar lessons, but do you remember something called the “passive voice?” As the Perdue Online Writing Lab explains, the passive voice rearranges the subject and the verb so that “the subject is acted upon,” rather than the subject doing something.

There are some legitimate reasons for writing in the passive voice, but if you are drafting a contract in the passive voice, the language can become problematic. The difference between a document that states “something needs to be done” and “someone needs to do something” (assuming two parties are in agreement to the content of the document) is the difference between a punch list and a contract — one lays out goals and the other assigns responsibilities. The “consequences of obscuring who the actor is (in the agreement) can be drastic,” so when the success of your endeavor is on the line, you need the clarity that comes with sentences written in the “active voice.”

Perhaps one of the easiest ways to cause confusion, is to use confusing words in an agreement. A common example would be when you want to describe something as capable of catching fire; is it flammable or inflammable? The correct answer is both. One problematic word often found in legal documents is “notwithstanding,” as in, “notwithstanding (i.e., despite) everything I just promised you, I can do whatever I want.” There is no reason to use “notwithstanding” except fear of straying from convention when it could easily be replaced with a “despite” or “in spite of.”2 And if you have yet to get in your cardio for the day, generally speaking, you should run, jog, or at least walk briskly away if you come across “and/or.”

It may sound polished or legal, but as suggested in the beginning, “and/or” is prone to creating confusion. It would not be much different if you responded to someone asking if you need help with “yes/no.” Its usage in contracts is often the result of a risk-averse author (admittedly, lawyers in many cases) that is afraid of missing some obscure reason for its continued usage (while inadvertently perpetuating the usage). Except in rare situations, a good lawyer should be able to replace “and/or” with much clearer language.

All of this is not to say that if you come across some of these issues in an agreement or some other document that you have a bad attorney. There’s even the possibility that less specificity, passive voice, or the use of “and/or” (or two of these, or all three of these) may actually improve the quality of the draft, but it is something of which to be aware. Most importantly, if there is language in an agreement that you don’t understand, ask your attorney to explain it to you — that’s what he or she is there to do.

  1. For the record, I have no idea if it is still cool to reference Game of Thrones.
  2. Notwithstanding, Black’s Law Dictionary (10th ed. 2014).