Corporate & Securities Law

?Unless and Until?

By Ken Adams

Parsing redundancy in contract language can get old, because it comes in endless shape-shifting forms. But a fundamental and intriguing kind of redundancy involves conjunctions. It’s high time that I consider unless and until.

It features prominently in contract language. For example, 842 “material contracts” filed on the SEC’s EDGAR system in the past month use unless and until. (Another 26 use until and unless.)

Here are some uncleaned-up examples:

Unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.

If the Shares or other securities are traded on a securities exchange, the Company shall not be required to deliver any Shares or other securities covered by an Award unless and until such Shares or other securities have been admitted for trading on such securities exchange.

In the event that any Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Buyers in accordance with Section 4(n)(i) above.

Here’s what Quirk et al., A Comprehensive Grammar of the English Language ¶ 13.83 (1985), has to say in the context of its discussion of if and when (which is a rarity in contracts):

If and when is a sterotyped expression weakening the expectation (conveyed by when alone) that the condition in the clause will be realized. … Other institutionalized conjoinings of conjunctions are: as and when; unless and until.

So you use unless and until if you expect or hope that the condition will be satisfied (as suggested by until) but want to signal to the reader or listener, by means of unless, that it might not be.

Well, that sort of rhetorical nuance is fine in speech or in narrative or persuasive writing, but not in the software-code world of contract drafting?use instead unless by itself.

Full post as published by AdamsDrafting on April 21, 2010 (boomark / email).