Thoughts On Ken Adams’s Irreparable Harm Provision

It's been quite a while since my last post. Things have been busy. But Ken Adams's (now not-so) recent post, Redraft This Sentence, MSCD Style: My Version of an "Irreparable Harm" Provision, on his contract-drafting blog gave me great pause. In the post, Ken puts forth a draft an irreparable harm provision and asks readers for their comments. There are several interesting comments, and I highly recommend reading not only the blog post, but also the comments.

After reading the post and the comments, I wanted to respond, and, given the length of this response, figured that the best way to offer my thoughts is through a blog post of my own.

Ken Adams's Irreparable Harm Provision

Here's Ken's draft of the provision:

Given the number of hours that I've spent reading and thinking about A Manual of Style for Contract Drafting (MSCD) on the Long Island Railroad and otherwise, I'd like to consider myself fairly familiar with Ken's contract-drafting guidelines. So his draft of the provision prompted me to think about ways in which it might be improved upon by using those guidelines and with a couple of Vinny-isms thrown in for good measure.

My Suggested Changes to Ken's Draft

So I've come up with a list of suggestions specific to the irreparable harm provision at issue and, in doing so, also delve into the more philosophical question of the extent to which you can tell a court what it must do.

1) The Sellers acknowledge that breach by the Sellers

In contracts that I draft I prefer, when possible, to use apostrophes to convey possession, rather than the passive voice. Thus, I would ordinarily write: The Sellers acknowledge that the Sellers' breach...

However, this is not a hard-and-fast rule for me. I will accept the passive voice if it helps relieve an ambiguity. In this case, I want to be clear that a breach by any of the Sellers (i.e., one or more of the Sellers) will trigger the provision at issue. Using the Sellers' breach refers only to a collective breach by the Sellers. And using any Seller's breach arguably extends the reference to one and only one of the Sellers. I'd therefore go with: The Sellers acknowledge that breach by any of the Sellers...

2) of one or more of their obligations under section X

Whenever dealing with a plural subject (in this case, the Sellers), I try to be on the look-out for ambiguity as to whether the object of the sentence is meant to point to a "respective" object or a "collective" object. For example, in a contract, there could be a distinction between the Sellers collectively providing notice to a party and each Seller separately providing notice to a party. In this part of the draft provision, there's arguably ambiguity as to whether the reference is to obligations that the Sellers are required to discharge through collective action or whether the reference is to separate obligations of each Seller (or to both). (If section X contains only individual obligations or only collective obligations, then I suppose the clarification is unnecessary.) Also, I think that one or more could be shortened to any. Finally, as I discuss below, I try to avoid pronouns; I would remove the their.

Thus, I would rephrase as follows: of any of the collective or respective obligations of any of the Sellers under section X...

(The truly picky among us could also argue whether that or in the sentence is meant to be an exclusive or or an inclusive or...

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