Corporate & Securities Law

?Promptly? and ?Immediately?

By Ken Adams

Quick?what?s the difference between promptly and immediately? I bet that what comes to mind is the notion that immediately requires speedier action that does promptly.

Well, if that?s what you thought, you?re in good company. For example, the District Court for the Southern District of New York has said that promptly doesn?t mean immediately, but rather within a reasonable time. See Morgan Guaranty Trust Co. of New York v. Bay View Franchise Mortgage Acceptance Co., 2002 U.S. Dist. LEXIS 7572, at *17 (S.D.N.Y. Apr. 23, 2002).

But let?s look more closely at this.

Promptly

The Oxford English Dictionary defines promptly to mean “readily, quickly, directly, at once, without a moment’s delay.” But more to the point, courts have uniformly held that promptness is a function of circumstances. Here are three representative cases:

• State v. Chesson, 948 So.2d 566, 568 (Ala. Civ. App. 2006) (stating that the term “promptly” has been construed to mean within a reasonable time in light of all the circumstances).
• Doe Fund, Inc. v. Royal Indemnity Co., 825 N.Y.S.2d 450, 451 (N.Y. App. Div. 2006) (”[W]hen an insurance policy requires notice of an occurrence or action be given promptly, that means within a reasonable time in view of all of the facts and circumstances.”).
• Buck v. Scalf, No. M2002-00620-COA-R3-CV, 2003 WL 21170328, at *5 (Tenn. Ct. App. May 20, 2003) (”It has generally been held that the terms ‘promptly’ or ‘prompt notice’ mean that notice must be given within a reasonable time in view of all the facts and circumstances of the case.”).

The current edition of Black?s Law Dictionary doesn?t contain an entry for promptly, but the sixth edition, published in 1990, did, saying that the meaning of promptly “depends largely on the facts in each case, for what is ‘prompt’ in one situation may not be considered such under other circumstances or conditions.”

Given that the meaning of promptly depends on the circumstances, it follows that saying as promptly as practicable [or possible] adds nothing other than some unnecessary extra words.

Immediately

What about immediately? The Oxford English Dictionary gives as the definition of immediately “Without any delay or lapse of time; instantly, directly, straightaway; at once.” (Bear in mind that immediately has other meanings, including “without intermediary,” as in the immediately preceding Business Day.)

And the current edition of Black’s Law Dictionary says that immediate means occurring without delay. Again, the sixth edition provides a more expansive entry, defining immediately as meaning “without delay; directly; within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch.”

So just in terms of dictionary definitions, immediately looks very much like promptly. And this similarity becomes more pronounced when you look at the caselaw, which indicates that just like promptly, immediately is subject to a reasonableness standard. Here are some representative cases:

• Dwoskin v. Rollins, Inc., 634 F.2d 285, 294 (5th Cir. 1981) (stating that “several Georgia cases arising in a variety of contexts suggest that immediate delivery means performance with reasonable diligence concerning the circumstances”).
• East Texas Medical Center Regional Healthcare System v. Lexington Insurance Co., No. 6:04?CV?165, 2007 U.S. Dist. LEXIS 50613, at *19 n.10 (E.D. Tex. July 12, 2007) (”Texas courts interpret ‘as soon as practicable’ and ‘immediately’ to mean ‘within a reasonable time under the circumstances.’”).
• Briggs Ave, LLC v. Ins. Corp. of Hanover, 05 Civ. 4212, 2006 U.S. Dist. LEXIS 34854, at *14 N.3 (S.D.N.Y. May 30, 2006) (”In any event, there is little or no functional difference between terms like ‘immediately’ or ‘as soon as practicable’; whatever language a policy uses to limit the time for notice, the touchstone is always the same, reasonableness under the circumstances.”).
• Martinez v. Dist. 1199J Nat’l Union of Hosp. & Health Care Employees, 280 F. Supp. 2d 342, 353 (D.N.J. 2003) (”The Court finds that ‘immediately prior’ means that a reasonable amount of time would pass between eligibility for health coverage with the Fund and the start of unemployment.”).
• Sunshine Textile Services, Inc. v. American Employers’ Insurance Company, No. 4:CV-95-0699, 1997 U.S. Dist. LEXIS 22904, at *7 (M.D. Pa. May 12,1997) (”The requirement of notice ‘as soon as practicable’ or ‘immediately’ both prescribe notice within a reasonable amount of time under the circumstances after learning of the occurrence, taking into account the exercise of due diligence.”).

But what about the Morgan Guaranty case? That?s the one mentioned at the top of this post?the one in which the court said that promptly doesn?t mean immediately, but rather within a reasonable time. Well, that was a case construing promptly, not immediately, so it’s of no real value as support for the proposition that immediately isn?t subject to a reasonableness standard.

And plenty of cases use the phrase immediately or within a reasonable time, suggesting that immediately isn?t subject to a reasonableness standard, but those cases, too, don?t address the meaning of immediately.

The Semantics

The net effect is that for purposes of contract drafting, promptly and immediately mean the same thing. Case closed. (Obviously, the same goes for expeditiously, as soon as practicable, forthwith, and the like, as well as the adjectives prompt and immediate.)

I hear you saying, How can this be? Here?s my take on it: In idiomatic usage, immediately can mean “instantly”?I didn?t hear what John said, but Mathilde immediately turned and walked away. By contrast, promptly conveys a sense that some time would be required. Promptly can be used to mean “instantly,” but only if you?re aiming for a slightly droll effect?I didn?t hear what John said, but Mathilde promptly turned and walked away.

On the other hand, immediately too can be used even when some time would be required?the U.S. Navy immediately began work on a new aircraft carrier. So immediately conveys a slightly broader meaning than promptly.

But the instantaneous sense of immediately works best when you?re describing events that have already occurred, particularly simple cause-and-effect scenarios. For purposes of regulating conduct?as in contracts?it?s problematic, because business affairs manifestly don?t lend themselves to instant responses. You always have to take into account what the circumstances permit.

The notion that immediately requires speedier action that does promptly is reminiscent of our old friend, the ostensible distinction between best efforts and reasonable efforts. In both cases, an untenable distinction lives on due to the failure of drafters to appreciate how a reasonableness standard serves to limit the reach of the seemingly more demanding standard.

Recommendation

Because immediately seems to promise more than it can deliver, you should omit it from your contracts. Use promptly instead. If you want a standard more demanding than promptly, specify a limit in days. Or combine the two standards?promptly, but in no event later than X days after ?.

And whatever you do, don’t include both promptly and immediately in a contract. To do so is to invite sharp-eyed litigators to argue for gradations of meaning where none had been intended.

Full post as published by AdamsDrafting on February 04, 2008 (boomark / email).