Promptly

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Where an obligation must be performed “immediately”, do we lose anything by yielding to the opposition’s request to demote it to “as soon as reasonably practicable”?

Chicken lickens may be aghast, but your old contrarian pal says no.

In the event that Party A makes any material changes to its investment policies it shall be obligated to immediately {{{2}}}as soon as reasonably practicable notify Party B.

What does “immediately”, as used here, even mean? Do we expect poor benighted Party A to be in fundamental breach should it fail at the instant — measured upon an atomic clock — that the alteration to said investment policy is formally approved in the institution’s minutes?

No? Then within what period can one dither and still be thought of as in the moment?

You might think Party A needs some time to collect itself, canter back to the office, fish the Rolodex out of the drawer, find Party A’s number, clear its throat, wait for Party A to pick up the line and exchange some human pleasantries before imparting this vital news. If so, you might ask yourself just how different that sense of “immediately” is to “as soon as reasonably practicable”. Not very, is your correspondent’s opinion.

In any case, unless Party B is both gagging to close this poor fund, and possessed of some unnatural intelligence as to its precise internal workings, as a covenant it is literally unenforceable in any case. Here are the possible scenarios after Party A changes its investment policy:

1. Party A does not tell Party B of the change at all but Party B is oblivious to the change: Party A has breached its covenant, but Party B cannot know this, so is in no position to take any action. Hard cheese, Party B!
2. Party A does not tell Party B of the change at all but Party B somehow gets wind of it: Party A has breached its contract, Party B knows of it, but because Party B knows about it, it is in exactly the position it would have been in had Party A complied with the contract, and cannot therefore suffer any loss as a result.
3. Party A does not tell Party B of the change at first and hasn’t yet, but will do eventually, after an unreasonable delay: Same as 1: To paraphrase the head chef at Fawlty Towers, eye is not seeing, so the chef is getting away with it.
4. Party A does not tell Party B of the change at first but then does tell Party B, only after an unreasonable delay: By the time Party B finds out the contract has both been breached and remedied, so it is hard to see what action lies.

“Immediately” might look severe, but it has a handsome economy quite lacking from “as soon as reasonably practicable”. A prose stylist might feel forcing such an inelegance on an already ungainly contract to be an unnecessary step. But it is not a hill that many negotiators would die on.

See also

• The difference between practical and practicable.
• As soon as possible but in any event not later than