I take the Long Island Railroad to and from work each day. Every now and then, I'll hear a conductor trumpeting one of my pet peeves (I have many): "Penn Station: last and final stop." This grates on me like fingernails on a chalkboard. The "last and final" cadence is an example of a couplet. And many couplets are redundant, articulated for rhetorical purposes. The more-savvy conductors simply say "last stop" or "final stop." There's no point to using both "last" and "final." (Could there be a "last and penultimate stop"? How about a "last and somewhat final" stop? Maybe, if you consider "the yard" a stop...)
Couplets can also be found in contract drafting. Not the kind of "couplet" found in poetry. (Although, how cool would it be if attorneys were required to draft contracts in verse?) Rather, I'm referring to a pairing of terms with commonly understood definitions that overlap to a large extent. And sometimes the overlap is so large that one term subsumes the other or is completely coextensive in definition with the other, at least when ordinary-sense definitions are applied.
One problem with couplets in contract drafting is that they are evidence of rhetorical emphasis, which has no place in writing that is meant to govern the relationship between two or more persons. You might as well say: "Last and final stop. Seriously, guys. I'm not kidding. That's why I said both 'last' and 'final.' "
But a more pernicious problem is one of contract interpretation. One principle of contract interpretation is that a court will attempt to give different meanings to different terms, even if those terms ostensibly would otherwise cover the same concepts. For example, if in your contract you refer to terms and conditions, a court might be inclined to interpret terms to have one meaning and conditions to have another. That's not always problematic. But issues can arise where, for example, you simply use the word terms (i.e., without conditions) elsewhere in the contract; the court might reason that terms means something less than one would ordinarily think the word terms means.
Here are some classic contract-drafting couplets (or triplets) and my suggested replacements:
- null and void — void
- covenants and agrees to – shall
- covenants, agrees, and undertakes to – shall
- cease and desist – cease (or another verb, depending upon the context)
- by and between — between
- true and correct — accurate
- terms and conditions – terms
There are many other examples. (You'll note that I did not attempt to tackle the hotly contested represents and warrants or indemnify, defend, and hold harmless. Perhaps I'll weigh in on those another day...)
And I should also mention that there are some instances in which I don't have the time or inclination to consider whether two terms constitute a true couplet, i.e., such that their ordinary-sense definitions completely overlap or that one term subsumes the other. For example, when representing a buyer in an M&A deal, I tend to throw in the kitchen sink in my definition of Lien rather to try to negotiate against the other side, my colleagues, my client, and myself as to whether there is a distinction between pledge and encumbrance.
And now I need to close. I'm writing this post as I'm riding the LIRR and we just reached the last and final stop.
This article is presented for informational purposes only and is not intended to constitute legal advice.
