Banish "agrees that" from your contracts

Ken Adams has written a recent post describing the use of “agrees that” in a contract.

One steady comment I make to agreements is getting rid of “agrees that” because it’s worse than ambiguous: it’s entirely unclear and likely to be used in distinctly different (and inconsistent) ways in the same contract. “Agrees that” becomes ambiguous when you let words mean things they don’t mean. I remove that phrase from drafts because it’s often a signal that someone is trying to say something different than what’s there. The true intent is always better expressed with “X shall” or “Y acknowledges” or even “Z represents.”

To me, the analysis is simply: What if this provision is breached? What does that look like? Who should be liable, and for what? Once you answer those questions, you know how to revise the sentence and eliminate the potential for inadvertent, or deliberate, confusion.

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