Corporate & Securities Law

Why I Don?t Use ?Immediately? or ?Automatically? to Reinforce ?If ? Then? Causality

By Ken Adams

Recently in my contract-drafting course at Penn Law I drilled my students in the categories of contract language. (I suggest that understanding categories of contract language is essential to controlled drafting. The topic is analyzed exhaustively in MSCD chapter 2, and you can get a sense of it by looking at posts on this blog in the “Categories of Contract Language” category.)

Here’s the “after” version of a provision I used in my class to illustrate verb use in language of policy relating to a contingent future event:

This agreement will terminate if the Market Price falls below $1.00.

One of my students suggested that the verb be changed to terminates, that using will terminate leaves it unclear when exactly the contract terminates?right when the Market Price falls below $1.00, or at some point afterwards?

I responded that changing the verb to terminates would have no bearing on that issue. And that in standard English, an if … then structure with will indicates cause and effect, with the cause triggering the effect.

It follows that I wouldn’t use immediately this context. As I say in MSCD 12.23 with respect to analogous examples, “A drafter might be inclined to use instead immediately … , but even without immediately the reasonable reader would conclude that the result in question would occur at once.” Any anyway, immediately doesn’t quite capture cause-and-effect.

And I don’t use automatically either. Besides being unnecessary, it conveys that no intervention by the parties is required, but it has no bearing on timing.

Full post as published by AdamsDrafting on October 09, 2010 (boomark / email).