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When Avoiding Uncertainty Takes Precedence Over Making Contracts Shorter

Screenshot 2024-05-06 123116I’m all for making contracts shorter. I’ve demonstrated over and over that applying A Manual of Style for Contract Drafting’s guidelines results in contracts that are not only way clearer but also significantly shorter.

But there’s a context where I add more to a contract than you might expect. Namely, when contract boilerplate provides for a given mechanism and there’s a good chance that not addressing how that mechanism might play out could lead to uncertainty.

One example of such a context is indemnification provisions. It’s routine for contracts to include an obligation to indemnify but otherwise say little about indemnification. When something happens that might fall within the scope an indemnification obligation, that kind of bare-bones approach can lead to fights over what indemnification covers. Litigators can be left prodding the corpse of the indemnification verb (usually indemnify or hold harmless or defend, or some combination), hoping it will disgorge its secrets. For example, Fillip v. Centerstone Linen Services, LLC, No. CIV.A. 8712-ML, 2014 WL 793123, at *4 (Del. Ch. 27 Feb. 2014), involves a fight over whether an obligation to defend required the indemnifying party to advance defense costs.

I would much rather be specific about how indemnification would play out. For an example of what that looks like, see this blog post about my indemnification language.

Another example is a notices provision. If in a contract you provide for the parties to notify each other, what constitutes effective notice? If you don’t address that in the contract, it might be up to a court to decide for you, relying on moldy old default rules. Go here for a notices provision created using an Adams Contracts template, with the user opting for a comprehensive version, and go here for my writings (and one video) on notices provisions.

In each of those two cases, my approach can add half a page to your contract. In the case of indemnification, what’s at stake makes that half a page worth it. In the case of a notices provision, that half a page is straightforward—it doesn’t impose a significant cognitive burden.

In both cases, the extra language isn’t speculative. Instead, it addresses matters that one could reasonably expect to result from the initial choice to include that kind of provision.

There’s one context where the extra language isn’t worth it: when not enough is at stake for you to bother with it. But the assumption underlying Adams Contracts is that something meaningful is at stake.