Corporate & Securities Law

?Specific?

By Ken Adams

When it occurs in contracts (apart from its use in the phrase specific performance), more often than not the word specific serves no purpose. Consider the following examples, which I harvested at random from the SEC’s EDGAR system:

Within 60 days following such request for a review, the Plan Administrator will, after providing a full and fair review, render his final decision in writing to the Claimant. The written decision will: (1) State specific reasons for such decision; (2) Provide specific reference to the specific Plan provisions on which the decision is based; …

If any one or more provisions of this Section shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessaryto make it or its application valid and enforceable.

The Company and the Purchasers acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the other Transaction Documents are not performed in accordance with their specific terms or are otherwise breached.

No such employees shall admit any person (Tenant or otherwise) to any office without specific instructions from Landlord.

I suggest that the drafter would have done well to omit specific from each of the above examples.

In the following example use of specific is OK, but I would have used instead individual:

… but such indemnification or advancement of Expenses may be provided by the Company in specific cases if the Board of Directors finds it to be appropriate; …

And it’s unobjectionable in the following examples, although I might have used specified:

The Borrower hereby represents and warrants that after giving effect hereto: (a) the representations and warranties of the Obligors contained in the Loan Documents … are true and correct in all material respects, other than those representations and warranties that expressly relate solely to a specific earlier date, …

Some of the foregoing requirements may be waived by Landlord for the performance of specific Minor Alterations; …

So if you’re tempted to use specific, try omitting it. If it passes that test, consider whether another word might nevertheless work better.

Full post as published by AdamsDrafting on February 10, 2010 (boomark / email).