Corporate & Securities Law

?Continuance?

By Ken Adams

Reader Steven Sholk sent me a case today. I found it of interest, but not for the reason he anticipated.

What caught my eye was the phrase during continuance of this agreement. A search of the SEC’s EDGAR database showed that it’s not a complete rarity: it occurs in about 200 contracts filed in the past year.

Here’s what Garner’s Modern American Usage has to say about continuance:

Continuance has virtually opposite senses in lay and legal usage. Generally, it means (1) “keeping up, going on with, maintaining, or prolonging”; or (2) “duration; time of continuing.” E.g., “Every citizen also wants lower taxes and a continuance of any and all federal spending programs that directly have some positive impact on each one’s lives” [Citation omitted.]

But in American law, continuance means “postponement; the adjournment or deferring of a trial or other proceeding until a future date” [motion for continuance]. E.g., “Her trial is scheduled for late next month but a continuance is expected. [Citation omitted.]

So that’s why continuance caught my eye?in the phrase during continuance of this agreement it’s used to convey a meaning at odds with its usual meaning under U.S. law.

And anyway, continuance is a terribly clumsy word. Instead of during continuance of this agreement, say during the term of this agreement. (Of course, that phrase is usually redundant.)

Continuance is similarly problematic wherever else it occurs. Consider the phrase during any continuance of any such Event of Default. An event happens; a status continues. This phrase seems an unhappy mix of both concepts. Maybe it would be best to use the defined term Default and delete continuance; I’ll look into that at some stage.

And in the phrase during continuance of his employment under this Agreement, I’d simply strike the words continuance of.

Full post as published by AdamsDrafting on May 20, 2008 (boomark / email).