“Though fully deserving of all the trappings of formality and the associated attention that goes into its creation and execution, a contract is one that allows a variety of audiences to readily understand what the parties have agreed to do. You have to explain in plain English that you can.”
When teaching intellectual property (IP) licensing at the Licensing Executives Society (USA & Canada), Inc., we often start with contract first principles. A “contract” is an encounter between the parties. What did they actually agree on? The function of the written agreement is to commemorate that meeting of minds. It is necessarily imperfect. Sir Ernest Gowers aptly describes the general task of writing good writing, which is “in such a way as to get an idea from one head to another as precisely as possible. word choice and placement.” (Sir Ernest Gowers, Plain Language: Their ABC, Alfred Knopp, New York, 1955). In IP licensing, it’s a difficult task to write down ideas from two or more minds and tell both of them what they thought as an agreement.
IP licensing poses unique challenges for originators. IPs are by definition unique and unknown until discovered by the inventor. Describing the object itself is challenging enough. Now try to explain how it will be commercialized and how the user will compensate the owner for its use. The stakes are often high, so word choice and placement are important.
Additionally, contracts should be written for a diverse audience. Initially, it is written for the technology and market savvy parties themselves (which creates its own pitfalls). But later on the audience could be judges who know little about technology and markets. But it is the judge who must decide what the parties have agreed to and whether they are upholding that agreement. There are probably many other audiences between these two of him. As such, word selection and placement is a complex task, requiring different skills and diverse perspectives to be taken into account.
Think twice before using ‘must’
Licensing executives tend to respect tradition and stick to proven facts. While admirable in some respects, it also risks perpetuating unhealthy and hidden habits. For example, consider the terms of duty.
some argue that Must A decisive choice of words to clearly state what you are obliged to do.And some people claim to never use the word Must in such capacity. A better approach is somewhere in between.
In many agreements, proponents of the former approach overuse Must, giving it a variety of less-suited jobs. The result can be a loss of clarity, uncertain meaning, and unpredictable interpretation. This can have devastating consequences, with carefully negotiated contracts that can last for years.
usage of Must It causes confusion in many ways. First, it is archaic and not commonly used in English, American, or other conversations. be interpreted as possible. It may reflect future intentions, suggestions, or permits, as opposed to commitments or acknowledgments of obligations. Furthermore, it is often used in a passive sense to say that something must (or must not) occur, but does not provide a subject or actor to carry out the duty. , so there is no clear result. Abuse piles up, for example. , “Let’s go?”; “I need to deliver a report…”; “In an emergency, don’t use the elevator.” To do. Even more so if the actors are not considered at all.
With that in mind, commentators Must by contract. for example, Brian Garner Garner Contract Drafting and Editing Guidelines, West Academic Publishing (2019), section. 47 “General Obligations and Prohibitions” (generally opposed to their use and generallyMust In many ways it violates the presumption of consistent usage. ); and Kenneth Adams, Contract drafting style manual, ABA Business Law Section (2017), Chap. 3.70 “Language of Obligations” (accepted as preferred over alternatives, subject to certain limitations).
Lord Gowers admits that there is confusion and contradiction in the use of Must and intention among English-speaking people.
“You will find that all English textbooks begin by stating the rules for expressing the ‘plain’ future.” Must used in the first person, intention 2nd and 3rd: I’m going. you go; he will go And if it’s a question of will, permission, or obligation rather than a simple future question, it’s the other way around. you must go (must go or be permitted to go); he must go (he must go or he is permitted to go);
– Sir Ernest Gowers, Plain Language: Their ABC, p. 237-238).
However, he states that “the Celtic idiom is different.” “American practices were modeled after the Celts, and on this matter, as in many other cases, the British began to imitate the Americans.”
“Obligatory” test
However, in general, the risks of using Must An obligation in the language of a contract is reduced (if not excluded) if it limits the imposition of a particular obligation on a particular actor who is a party to the contract and agrees to undertake that obligation.every time it appears Must For what both Garner and Adams call the “obligated to” test, the contract should be scrubbed. Does the use of “shall” impose a clear obligation on certain parties to the contract to perform certain tasks? If not, please reconsider.
alternative to Must It’s a term we use more commonly.As a condition of the obligations imposed on the parties, I like intentionKeep in mind that the premise of any well-written agreement is an explicit acknowledgment that “the parties agree as follows”. If we read this predicate into various clauses of the contract, we see, for example, that the parties agree that the licensee will provide quarterly reports on the licensee’s sales to the licensor. This is consistent with how we generally express ourselves and commit to doing something. “Yes I will.” Combined with the form of the contract, it is more than just a statement of intent or future.
Practice tips. Sir Gowers’ commentary seems quaint, if not outdated, but nevertheless, Must and intention Both suffer from breed usage, and therefore interpretation.choose or not Must again intentionconsider the following “interpretation” clause: [shall or will] With respect to a party, it is a term of obligation meaning that the party has an obligation to do (or not to do) a particular act. In addition, unless expressly stated otherwise, it is not intended to be a mere description of the future or intentions. “
As a word of warning, avoid using consent as a substitute. A valid introduction of a contract is the acceptance of the terms of the contract by the parties (for example, “Both parties agree as follows”).subsequent use of the word consent Within the body of the contract, there is a risk that it will be seen as an agreement for acceptance only. That’s usually not what’s intended deep inside the contract.then extra use consent The content of the contract may interfere with the intentions of the parties. But by the time the contract is contested, one side can hope to use the ambiguity to their advantage.
Some people prefer to use Must as an alternative to intention impose obligations on the parties; I’m not sure. To keep our promises, we say very little. Must perform a specific task. It’s more common to say “I promise to do something.”
alike consent above selection Must Introductory acknowledgment of what the parties agreed to do seems redundant.If you agree to do something, you agree with you intention Do it. Must It seems to imply that an outside force or authority is at work and that you are not an active participant. suggests that something or someone is forcing you to do so.
Must It seems like a condition fulfilled by a third party or inanimate object. Presumably it refers to an event or act that the parties agree must occur through the manipulation of some external force before obligations are transferred to them.
usage of in May It clearly doesn’t fit the bill either. as is commonly used, in May is purely arbitrary. It means that the subject is allowed to do something if the subject so chooses. However, it may be less than a guarantee that the desired results will be achieved. for example“Licensee in May request an extension”; however, we believe that the extension request may not be granted.less than that entitled, give the subject an affirmative right to a given action or choice; for examplethe licensee is entitled Up to a one-time extension of 3 months. “
choose wisely
A contract is a highly formalized, legally binding contract. Fully deserving of all the formal trappings, and the associated attention that goes into their creation and execution, nevertheless, what the parties agreed to do can be easily understood by a variety of audiences should be explained in plain English. Despite the traditional use of the term (abuse and abuse), Must Not the ideal option for clearly and articulating the various commitments and obligations agreed upon by the parties. Must As a condition of obligation in the contract, make sure it passes the “obligated to” test in all cases. If not, alternatives should be carefully considered.
