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 that 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, immediately as soon as reasonably practicable, to 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 to advise Party B at the utter microscopic instant, measured upon an atomic clock, that the change is formally approved in the institution’s minutes?

No? Then within what period can one dither and still be thought of as sufficiently in the moment to be “immediate”?

Surely Party A needs some time to collect itself, canter back to the office, fish out its Rolodex, find Party A’s number, clear its throat, wait for Party A to pick up the line and exchange some 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, even where Party B is gagging to close out this poor fund, unless it is possessed of some unnatural intelligence as to the fund’s internal workings — and, when it comes down to it, even then — the covenant is practically unenforceable in any case. Here are the possible scenarios after Party A changes its investment policy:

1. Party A does not tell Party B at all. 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 at all. Somehow, Party B finds out anyway: Party A has breached its contract, Party B knows this but, precisely because Party B knows about it, Party B is no worse of than had Party A told it, and cannot really suffer any loss as a result.
3. Party A does not tell Party B at first. It will eventually, after an unreasonable delay, but hasn’t yet: Same as 1: To paraphrase Terry, head cook at Fawlty Towers, the eye is not seeing, so the chef is getting away with it.
4. Party A does not tell Party B at first. Then, after an unreasonable delay, it does tell Party B: Same as 2. 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
• What the eye don’t see the chef gets away with