Thursday Thinkpiece: Adams on Singular and Plural in Drafting

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A Manual of Style for Contract Drafting, Third Edition
Kenneth A. Adams
Chicago: American Bar Association, 2013

Excerpt Chapter 13, Selected Usages

WHETHER SINGULAR MEANS PLURAL

• 13.748 One type of failure to address an issue is uncertainty regarding whether a reference in the singular also applies to the plural. (It bears some resemblance to ambiguity of the part versus the whole; see chapter 11.)
• 13.749 This type of uncertainty isn’t a function of ambiguity, because only one meaning is conveyed. Instead, the uncertainty derives from not knowing whether the drafter omitted the plural so as to exclude the plural from the scope of the provision or because the drafter hadn’t spotted the issue or thought it unduly pedantic to include the plural.
• 13.750 One example of this uncertainty was featured in Coral Production Corp. v. Central Resources, Inc., 273 Neb. 379 (2007). The contract provision at issue stated that a preferential right to purchase certain oil and gas assets wouldn’t apply if “substantially all of the assets and/or stock of the selling party is sold to a non-affiliated third party.” The party seeking to invoke the preferential right contended that sale of the oil and gas assets didn’t fall within that exception because the assets had been sold to more than one nonaffiliated person. The court found in favor of the party that had sold the assets, holding that the exception applied to sale to more than one person.
• 13.751 Similarly, ION Geophysical Corp. v. Fletcher International, Ltd., No. CIV.A. 5050-VCP, 2010 WL 4378400 (Del. Ch. Nov. 5, 2010), concerned whether a party to a stock purchase agreement could issue more than one notice under a procedure that would allow that party, under certain circumstances, to increase the total number of common shares into which it could convert preferred shares. The provision in question used “notice” in the singular. After analyzing, none too convincingly, use of “notice” with the definite article the and the indefinite article a, the court held that the provision was unambiguous—the parties had intended that more than one notice could be issued.
• 13.752 But what the courts held in these disputes is less relevant than how the disputes could have been avoided. Whenever you’re drafting a provision that refers to a thing or an unnamed person, consider whether you want that provision to apply (1) regardless of the number of things or persons, (2) only with respect to one thing or person, or (3) only with respect to more than one thing or person. More often than not, the first meaning is the one you’ll want to convey. In that case, make it explicit. Whoever drafted the language at issue in Coral Production could have accomplished that by using the phrase one or more, as in “one or more non-affiliated persons.” By contrast, to fix the language at issue in ION Geophysical the drafter would have had to add another sentence.
• 13.753 Use the phrase one or more rather than the formula X or Xs—say one or more widgets instead of the widget or widgets.
• 13.754 Don’t rely on a provision specifying drafting conventions to ensure that another provision in a contract applies regardless of the number of things or persons. For one thing, such provisions specifying drafting conventions are clumsy (see 15.20). Furthermore, you can’t assume that a provision specifying drafting conventions would be enough to prevent a fight over singular versus plural, For example, the contract at issue in Coral Production featured just such a provision specifying drafting conventions.

The Role of “Any”

• 13.755 Consider the following:
  if Acme files a complaint with a government body
  if Acme files a complaint with any government body
• 13.756 Some might think that using any in the second example would ensure that the provision couldn’t be read as applying only if Acme files a complaint with a single government body, as opposed to two or more government bodies. (If you think it unlikely that anyone would argue for the narrower interpretation, consider Coral Production.)
• 13.757 But any can’t be counted on to accomplish that, as it could be taken to mean that the provision applies to any one member of the class in question (see 11.85). But that’s the meaning conveyed by the indefinite article a, so using instead any serves only, in some contexts, a minor rhetorical function.
• 13.758 If you want to convey the broader meaning, use one or more: if Acme files a complaint with one or more government bodies.

A Balanced Approach

• 13.759 You could go out of your way to make it clear that every provision that’s phrased as applying to a single item also applies to more than one of that item, but the result would be ponderous prose. Compare the following two versions of the same provision, the first of which is worded so as to apply to single items and the second of which is worded so as to apply to one or more items:
  Acme shall not disclose to a Representative any information if doing
  so would cause Acme to breach a duty to another Person to keep that information confidential or would cause Acme to violate a law or an order of a Government Body.
  Acme shall not disclose to one or more Representatives any information if doing so would cause Acme to breach a duty to one or more other Persons to keep that information confidential or would cause Acme to violate one or more laws or orders of one or more Government Bodies.
• 13.760 The second version is sufficiently ponderous as to suggest that it’s not feasible to make it explicit in each case that a provision that applies to one item also applies to more than one of that item. Instead, the more reader- friendly approach would be to use one or more intermittently, presumably in those contexts that pose a greater risk of dispute.

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Reprinted with permission from Manual of Style for Contract Drafting, Third Edition, available for purchase from: http://apps.americanbar.org/abastore/index.cfm?pid=5070661&section=main&fm=Product.AddToCart 

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