Corporate & Securities Law

?As the Case May Be?

By Ken Adams

Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view:

When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to address the immediate consequences. When the contract is signed it won’t be known, for purposes of those following sentences, which of the alternative courses of action will have transpired, so those sentences have to track the alternative scenarios. But they have to make it clear that whichever choice is made with respect to the initial sentence, that choice will flow through to the sentences that follow. That’s the function of as the case may be:

1. Able shall transfer the Shares to Baker or Charlie no later than March 31, 2008.

2. No later than 5 days after transfer of the Shares in accordance with section 1, Baker or Charlie, as the case may be, shall enter into a Noncompetition Agreement with Widgetco in the form of exhibit A.

But it’s rare to see as the case may be used properly. For one thing, generally you can convey the required meaning more economically. For example, in the above example one could use the transferee rather than Baker or Charlie, as the case may be.

And in the overwhelming majority of instances, as the case may be is misused, in that it’s tacked on to an expression of simple alternatives:

“Date of Termination” means the date on which a Covered Change in Control Termination or Covered Termination Prior to a Change in Control occurs, as the case may be.

Upon Termination of Employment, any unpaid Periodic Compensation and any unpaid Treasury Bill Interest Equivalents credited thereon shall be paid to the Participant or his or her Beneficiary, as the case may be, in a lump sum payment no later than 60 days following that Termination of Employment, subject to section 9.03.

And there are alternatives to as the case may be, namely as applicable and whichever applies. I think all three alternatives are plausible, but I’d prefer not to have to use any of them.

Full post as published by AdamsDrafting on February 29, 2008 (boomark / email).