Don’t accept passive-aggressive drafting

October 24, 2013 · 2 comments

I recently came across this language (unaltered) in a contract:

The Parties understand and agree that all Confidential Information (i) is to be preserved and protected; (ii) is not to be disclosed or made available, directly or indirectly, to anyone other than Authorized Employees, including, without limitation, third parties or unauthorized employees for purposes unrelated to those outlined in this Agreement, without prior written authorization from an authorized officer of the disclosing party; and (iii) is not to be used, directly or indirectly, for unrelated activities to the subject matter(s) the Parties are discussing without prior written authorization from an authorized officer of the disclosing party.

See how this sort of, but doesn’t actually, say what the Parties are obligated to do and obligated not to do? This passive style, which ultimately isn’t particularly useful, has started to annoy me more and more because while we might all say we know what’s intended, that’s certainly not what’s written. And when what’s intended isn’t what’s written, the possible complications grow.

Here’s my quick, one-shot do-over. (I’m going to cut-and-paste this and time myself to see what I can do quickly.)

Each party (i) shall preserve and protect all Confidential Information; (ii) shall not disclose or make available, directly or indirectly, any Confidential Information to anyone other than Authorized Employees, including third parties or unauthorized employees for purposes unrelated to those outlined in this Agreement, without prior written authorization from an authorized officer of the disclosing party; and (iii) shall not use any Confidential Information, directly or indirectly, for activities unrelated to the subject matter(s) the Parties are discussing without prior written authorization from an authorized officer of the disclosing party.

Time elapsed, including the cut-and-paste: 2:03.

Words before: 97; words after: 91

I think the second version is much clearer and harder to intentionally, or even unintentionally, misconstrue. By misconstrue here I mean making the argument that the parties have agreed on these goals and uses but specifically NOT undertaken to actually do those things; in short, “understand and agree” just means “acknowledge.” This argument pops into my head because I regularly replace those two words with “acknowledge” when there’s no obligation and not a representation, just a one-sided statement of acceptance of a fact, which I think really only has the value of “proving” notice.

If I were to do more, I would probably turn this into three sentences to improve readability, rather than frontload the triple clause with something like “With respect to Confidential Information, a party shall not (i) … (ii) …; or (iii)…. I think that clarity is harder to come by than space on the page. (As an aside, this reminds me of how many companies are switching to languages such as Ruby and Rails because even if they are technically “slower” on the server, they greatly improve the scarcer resource of programmer time.)

Help your contract language speak clearly: say what you mean. What other changes would you make here? 

 

 

 

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