In fact, I prefer Option 3 because it answers the question of what would be the consequence of disclosure by a representative of Widgetco – the same as that of Widgetco. This applies in particular if the consequences of disclosure by Widgetco are regulated in the contract. I have no problem constructing legal fictions in this way – it seems clearer than repeating provisions that apply to disclosures by Widgetco itself or applying other remedies. However, Option 3 does not help Acme with respect to an injunction. I agree with your aversion to “cause” (and likewise “procure…” “, or “ensure…” »). This brings you to it (according to MAW`s comment) and I wouldn`t mind if it were submitted by another party, but (i) it`s a detour and therefore more likely to cause disputes and (ii) as Robertor982 notes, it doesn`t specify what the remedy would be (damages? injunction?). For a good discussion of “shall” and “must,” see Bryan Garner, A Dictionary of Modern Legal Usage (2nd ed. 1995), pp. 939-942. WASH: I am wary of imposing an obligation on a party that they cannot fulfill.
For example, I could impose a licence on Acme from a government agency. Clearly, Acme would not be able to fulfil this obligation; Whether the authority grants a licence would be determined by other factors. Third, no one uses the word “shall” in everyday language. This is another example of useless lawyer`s speech. No one says, “You`re supposed to finish the project in a week.” Nor do I like another aspect of some of your other examples: at least in themselves, the statements raise the question of what obligations are imposed on Members and by what mechanism these obligations are imposed on Members. Holding one of us liable for damages caused “by its agents other than those authorized by this Agreement” leaves the way for that. representatives. are entitled under this Agreement (since, as you have pointed out, the Representatives themselves are not subject to the Agreement). If Jones hadn`t been able to participate in the fight, King wouldn`t have been able to get Jones into the fight. As a result, King violated the agreement. Later, when it found support in federal rules, Congress also enacted the Plain Writing Act of 2010 (the Act), which required all federal agencies to follow federal plain language guidelines and use “must” instead of “must” when imposing requirements.8 Federal plain language guidelines state that the word “shall be the clearest means of: To make their audience understand that they have to do something.” 9 On the other hand, `is intended to indicate either an obligation or a prediction`. 10 In order to comply with the law, many jurisdictions now have manuals that require the use of must instead of must when imposing requirements.11 As with the federal government, the transition from the word shall will increase clarity in legal drafting.
Despite the ambiguity of the word, the word is destined to continue to be used in the majority of agreements, contracts and legal forms. Instead, these documents should be drafted or revised in such a way that they must, can, will be or should. Unfortunately, the complete elimination of existing documents and templates without expert legal advice requires a review of countless documents and accurate analysis each time the word appears in a document to find the correct meaning and replace it with the appropriate word. Alternatively, a global proofreading language can be inserted into existing documents to require that all uses of the word be interpreted as mandatory and not permissive. In the lawsuit that followed, WOB claimed that King broke his contract by not bringing Jones into the game. The court agreed (footnotes omitted): authors should not use “shall” and “shall” together in the same law or regulation. This could raise the question of whether different meanings are intended. 6 R. Evid.
1 Note by the Advisory Committee; Fed. R. Civ. P. 1 Advisory Committee Note (“The revised rules minimize the use of inherently ambiguous words. For example, depending on the context, the word “shall” may mean “shall”, “may” or something else. The risk of confusion is exacerbated by the fact that “shall” is no longer commonly used in spoken or clearly written English. The revised rules replace “shall” with “shall”, “may” or “should”, depending on the context and the interpretation set out in each rule is correct. »). I agree that there is no need for compensation if a breach of contract claim is available. But the indemnification language in Option 4 would be appropriate, as there is no breach of Widgetco on which you could base a claim for damages. In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the fight, Jones failed a drug test and was stripped of his victory.
In January 2014, boxing promoters Don King and WOB entered into a “memorandum of understanding” in which King promised to “bring Jones into a rematch.” But before the rematch, Jones failed another drug test, so Lebedev withdrew. I think your objection to track 1 is based on the fact that you think X would be foolish to make the deal if he didn`t control Y. But the language still works. I can pledge that every 3rd party will or will not do something. I may not be able to do it, but if I do not, I have broken my commitment and you are entitled to compensation. This sounds perfect for the situation where you want Widgetco to be responsible for any disclosure by its representatives, whether or not it can control them. AAG: I would appreciate it if you (or someone else) could provide me with a “must provide” analysis. In my view, the difference between “should prove” and “should cause” is anything but obvious. Although this is my first time meeting him, I tend not to touch him with a ten-foot pole! But I will keep an open mind.
In the above sentence, each time is replaced by must, will, can, should, or a combination of words, the sentence still makes sense, and it is impossible to determine what interpretation the author intended. Unless the reader is explicitly told that it should be interpreted as mandatory – and not as specific, i.e. the author is only making a recommendation or even a request – it is ambiguous and can give rise to litigation. In 1995, for example, the United States Supreme Court issued a decision in Gutierrez de Martinez v. Lamagno, which could be interpreted as May in some contexts.2 The decision does not imply that it should always be, but rather that the context, unless explicitly defined, determines whether it is mandatory or prectorial.3 Consider this sentence: “The rental period begins to run from the beginning of the subsequent period of … Now replace shall with one of the other verbs mentioned above. “Shall” is not simple English. But legal authors use the word “shall” all the time. You will learn it by osmosis at law school, and the lesson will be reinforced in legal practice. Secondly – and as regards the first – it leads to litigation.
There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases in which “shall” is interpreted. One possible approach is as follows: “It is the responsibility of the receiving party to take reasonable steps to ensure that its directors, employees and professional advisors comply with the terms of this Agreement [and will be liable to the disclosing party for any breach of this Agreement by its directors, employees and professional advisors].” I have some objections. The first is that using the target cause is standard in this context. But the popularity of a particular sermon does not affect its merit. What about the “must”? It is interesting to note that English legislation avoids the use of “will” or “shall” in favour of “must”. “Must” always suggests an absolute obligation. In this context, Widgetco cannot induce a suspicious employee not to disclose confidential information. Widgetco may ask the employee not to make a disclosure. Heck, Widgetco may even make it a condition of continued employment that the employee enters into a confidentiality agreement that requires the employee not to disclose.
But this is not enough for the employee not to disclose. Rarely, if ever, do I see an “indemnification clause” in an NDA, other than saying that “a breach can cause irreparable harm” and allowing “remedies” (boy, that`s specific) and an injunction. So if “offset” means compensation, shouldn`t there be a dollar amount and/or cap? In general, I see a more general “each party agrees to take reasonable steps – for. because they would be the most confidential.” Then, of course, you have the question of what is “reasonable” and how to really apply all of this – IMHO NDA are just a finger in the dike – sooner or later it will leak. Ask a writer what “should” means, and you`ll hear it`s a mandatory word – as opposed to the permissive “may.” While this is not a lie, it is a gross inaccuracy. Often, it is true that “should” is mandatory. But the word often has other meanings – sometimes even as a synonym for “may.” In almost all case law, courts have held that “shall” can mean not only “shall” and “may,” but also “will” and “is.” Official editorial bodies are increasingly recognizing the problem. A lot. The authors adopted the “target-go” style.
You should do the same. Most leases, contracts and legal forms today are interspersed with the word must. Soll is a word loved by many, but it may be time to move away from obligation.