For the avoidance of doubt
The Jolly Contrarian’s Glossary
The snippy guide to financial services lingo.™
And to this end they built themselves a stupendous super-computer which was so amazingly intelligent that even before its databanks had been connected up it had started from “I think, therefore I am” and got as far as deducing the existence of rice pudding and income tax before anyone managed to turn it off.
Should a lawyer ever say these words?
When one whose livelihood attests to unusual semantic facility — uses the ugly expression “for the avoidance of doubt”, she surrenders without a shot to the demands of the English language. Even as a piece of English the phrase is hideous: who converts “avoid” into a noun? What kind of glass-half-empty misanthrope sets as a guiding objective not being confusing?
“You had one job”, so the saying goes: it is to express yourself in a way that doesn’t contain doubt in the first place. For what is the point of a contract if not to clear up the confusion left by the primordial grunts, nods and mumblings of interacting merchants?
Our plea falls upon deaf ears. We know this. This is how it usually plays — this is, honest to God, a real-life example:
The chargor assigns and agrees to assign absolutely, subject to the proviso for re-assignment on redemption, all of its rights in respect of the assigned receivables, together with the benefit of any security granted to the chargor thereof (and together in all cases, for the avoidance of doubt, with the proceeds thereof).
Do you feel reinvigorated with clarity, readers?
Speaking of God, it is a little known fact that Descartes’ metaphysical epic Discourse on the Method was a spirited attempt to define the expression for the avoidance of doubt. He started by asking, “what is doubt? Can we ever be sure that what we think is doubt, is, actually, doubt? And if there is some doubt about that, how should we feel about it? Doubtful?”
Poor old Descartes never figured that out, but found himself — at least as a thinking thing — and he found God, too — well, he thought he did — along the way, so his day wasn’t totally wasted.
Yet, what is doubt? What is this existential flummery, that fogs our interior on even the sunniest day? Whence that numbing smoke, that more thickly fills our mortal cockpit, day by day?
Doubt-avoidance as the job description
One might make the case that the entire role of a commercial solicitor can be boiled down to “avoiding destructive doubt” that undermines commercial relationships. That’s the day job. Now there may be some nugatory regulatory cross-checks required, to be sure, but as regulation is typically designed not to be flakey or ambiguous — an ambition it does sometimes fall short of, I grant you — the job of advising on it ought not be the one that keeps home fires burning.
Not all doubt is destructive. We must contrast destructive doubt with a kind of high-functioning doubt that is healthy in a commercial relationship — that keeps the the passion aflame; keeps hearts aflutter, keeps the parties surprising each other with flowers and romantic candle-lit dinners every now and then, and is not really the solicitor’s job to poke her nose into that. Removing that kind we call not doubt “avoidance” but doubt “evasion”. it goes beyond the prudent optimisation of one’s commercial affairs that every merchant is entitled to. Doubt evasion is a far more serious matter.
Recursive doubt avoidance
None of this will stop ninja-types on their crusade to exterminate doubt wherever they can find it. That elite force of lexical purists, ISDA’s crack drafting squad™, has in recent times begun nesting doubt-avoidance subroutines, presumably fearful that uncertainly might leech into a construction even during the process of driving it out. 
How to ensure such second-order neurosis does not rot your verbal superstructure from the inside out, like some kind of insidious rising damp? Fear not, the JC, as ever, has your back: add this in, like a doubt-course membrane:
“For the avoidance of doubt, this paragraph is intended to, shall be deemed to and, notwithstanding anything to the contrary hereinbefore contained does avoid any and all doubt of any type, kind or variety provided that it shall not be deemed to, and shall accordingly not, amend, alter or affect the foregoing passage, which passage does not, for the avoidance of doubt and notwithstanding this present clarification as it may, from time to time be amended updated or clarified, introduce any doubt, (other than, for the avoidance of doubt, those previously-identified doubts as may have been conclusively eliminated by the doubt-avoiding effect of this present clarification).”
The case for doubt avoidance
Now as you know readers, the JC likes to argue the toss about every little thing, with every little person, any time day or night. Every so often the JC even finds himself getting in an argument with himself. This is one such occasion.
For however odious, however mealy-mouthed, however derogative of an attorney’s basic professional calling — “for the avoidance of doubt” does have a use, and a deliciously subversive one at that.
“FTAOD” is a dead man’s code: a message in a bottle; a trail of breadcrumbs; a final message to the hereafter from a doomed Tommy on the Front. It is the perishing hope that, perhaps years later, someone might come across it and his labour will not have been in vain. This is Private Eagle’s last, mud-stained letter to his sweetheart back home, saying “don’t worry, my love: everything will be all right,” the night before he was sent over the top.
How so? Well, cast your mind forward eleven years from the battlefield. The contractual skirmish in which Private Eagle’s parting shot was fired is but a memory, as is Private Eagle. The contract bearing it witness, once executed, was faxed, scanned, crushed, buried in peat, smudged, mislaid, sent by mistake to Colchester and eventually routed to its final resting place deep in an electronic document repository a server somewhere in Gdansk. This is where master contracts go once they have fulfilled their main purpose, which is injecting gravity and commitment to the onboarding ritual. They are sent there in the hope — usually justified, in fairness — they will never again be required. Except, ha ha, in case of catastrophe.
But a decade on, there is just such a catastrophe. The client is in trouble. The credit team are running around with their hair on fire. Suddenly, everyone up and down the chain of command to and including the chief risk officer is feverishly interested in that elderly contract. They want to know, in forensic detail, with utter certainty and now, what it means.
The file is retrieved from Poland, packaged up and sent to some poor legal eagle, who will never have seen it before, let alone been involved in its negotiation. She must do that analysis, faultlessly and at the double. She must categorically advise that the risk team has the necessary rights to plunge their detonator. She gets out the agreement template, sets it beside the executed document and does her best to compare this smudged, pixelated horror-show against what, according to the playbook, it was meant to say, and would have said, had it been a perfect world. But, eheu: it is not a perfect world. It is one inhabited by pettifogging buyside counsel and customers who like winning points on the docs for the sake of it. There are, accordingly, dozens of textual additions and excisions from the standard.
Now parsing a mutilated legal text on a good day is a fraught business: that is why lawyers get paid so much. But it is orders of magnitude worse in a crisis. Things that look straightforward in daylight rear up like hellish stallions in the black night of client distress. Words thrown carelessly into a draft take on a ghoulish aspect.
Of course, if those carelessly tossed-about words were simply a function of someone trying to show they they were paying attention or just making some input, it might be different. But, at a decade’s remove, that is a bold conclusion to draw. It is a curious fact of legal practice that the more harmless an addition is, the more terrifying it will seem on the eve of war. Its very frivolity will set alarms blaring precisely because it seems so pointless. Why on Earth would anyone go to the bother of adding “... under this agreement or any other agreement, where applicable, as the case may be,” if it didn’t mean something?
It is axiomatic that words deliberately inserted into a legal tract have work to do. If they are not obviously beneficent, she must assume them to be nefarious. She may not say, “it will be all right on the night”. What a legal eagle doesn’t know for certain she must deny. It is in her nature.
Now switch back to that poor, toiling Tommy and see the beautiful thing he has done. “For the avoidance of doubt” is his gift to the future: it dispels that kind of uncertainty before one can be gripped by it. It says, “to whom it may concern: you may safely ignore what follows. It goes without saying. It is only there because some clot on the other side wouldn’t let it go, and our salesperson was about to go into orbit if we did not sign the docs. I did not die in a ditch. We closed the deal.”
This is an honourable use of a dishonourable expression. While passing subtle judgment on your opponent’s pedantry, it steers your successors home, solving the perennial problem of delivering certainty in a draft and accommodating your customer’s pedantry at the same time. It is just a pity it is so tiresome a phrase. But other formulations might do as well: “to be clear” — if you are comfortable with an informal register — “for clarity” if not.
Thus “FTAOD”, for its outward silliness, becomes our little code: our in-joke: our word to the wise.
- ↑ What, by the way, on earth was going though the mind of whoever confected that expression? “Assigns and agrees to assign'”'? Is this to distinguish from those who assign at gunpoint?
- ↑ I have written at length about that elsewhere.
- ↑ I am indebted to Graeme Johnston for this, and many other, excellent ideas.
- ↑ For example, in the definition of Settlement Disruption Event in the EU Emissions Allowance Annex.