By or on behalf of
Legal drafting designed to disarm playground-style arguments.
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Towards more picturesque speech™
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For if you fear your counterparty may complain that, while it did receive the fruits of your agreement, and got what it wanted, it didn’t get them directly from you — that, by carrying out your promise, at your own cost, through the offices of an agent, employee or other fiduciary representative of your mortal coil — by merely procuring performance and not performing in person — you have somehow wronged your counterparty,[1] then your main concern should not be imprecision in your counsel’s drafting, but why on earth you’re entering legal relations with such a goose in the first place.
It is a principle of equity, of business, of common flipping sense that one should not be that guy.
But — as we have rehearsed so many times — to a legal eagle, the realm of commercial probity is a foreign country. It is an inhospitable — even hostile — place. If a legal eagle ever has to overfly it, she does so with apprehension, maintains altitude and scrams at the first opportunity, for fear she might be shot down.
When allied bombers returned from sorties over Europe, it is said, they sustained flak damage unevenly: some areas were shot at a lot, others far less. Engineers suggested focusing the armour where the planes sustained the most damage. The statistician Abraham Wald pointed out the survivor bias problem: the only planes you see are the ones that came back: where they got hit was the places it mattered least.
So it is with a legal eagle’s sorties over commercial territory. “By or on behalf of” is armour plating on a part of the fuselage that can be freely shot at with out much risk.
There is injudicious caution, and then there is five-inch steel plating on a crop-duster. This from a 110 page bunker-buster spotted by regular correspondent Dennis Potemkin:
References to items to be provided or obligations to be performed “by” Supplier include the obligation that such items shall be provided or performed “by”, “on behalf of”, “for” or “at the direction of” Supplier through one or more Supplier Representatives, in each case in accordance with the Agreement.
Why is there such forensic detail over prepositions, we wonder, but at the same time such a casual disregard for the idiomatic use of definite articles?