Ken Adams’ Thoughts on “For the Avoidance of Doubt”

Many lawyers draft contracts that are too long, too complex, and just badly written. Bad agreements are hard to eradicate, because everybody copies everybody else without thinking twice about it.

Agreements should be easy to read and should make sense from a legal and logical perspective.

Fortunately, Ken Adams and his blog have come to the rescue. In one of his recent posts, Ken discusses the common use of "for the avoidance of doubt."

As a crass example, an agreement might state, "No beverages shall be
served before noon. For the avoidance of doubt, this includes the
serving of coffee."

Ken Adams categorically states that one should "never use for the avoidance of doubt." He explains:

Sometimes a drafter will use this phrase in a contract
to introduce language that seeks to clarify preceding language, usually
by indicating that something either falls within or is excluded from
the scope of the preceding language. In this context, for the avoidance
of doubt says, in effect, “excuse us if we state the obvious.”

And that obviousness would allow you simply to delete
for the avoidance of doubt, because the language that follows doesn’t
alter, in any meaningful way, one’s understanding of the preceding
language.

I fully agree in principle with Ken’s approach.  Nevertheless, I
don’t see that language disappearing any time soon.  In my experience,
language like "for the avoidance of doubt" most often enters the
picture because opposing counsel wants to include it. They do not
understand the full depth of certain agreement language and want to
make sure that something gets expressly mentioned in the agreement.  A
client might even have demanded it.

Try explaining Ken’s theory to such counsel and see where it gets
you. If "for the avoidance of doubt" makes them happy and is not
harmful to my client overall, I tend to be more than willing to agree
to it. I figure that it could even give me some leverage with respect
to other contract language that I want to have included in the
agreement.

If you are an attorney reading this, do yourself a favor and follow Ken’s blog.  There is a lot to learn.

About Imke Ratschko


Imke Ratschko is a New York Attorney helping small businesses, business owners and entrepreneurs with all things "Small Business Law," such as litigation, contracts, business owner disputes, shareholder and operating agreements, sale or purchase of a business, investors, and starting a business. You can reach her at 212.253.1027.

One comment

  1. I enjoyed reading your blog. Keep it that way.