Thursday, September 4, 2014
It is common in many agreements to define the term “Agreement.” Definitions such as the following are common:
“Agreement” means this [ ] agreement, as amended, supplemented, restated and replaced from time to time in accordance with its provisions.”
Defining the term is, however, unnecessary. There will be no confusion as to any other agreement referred to when the text speaks of “this agreement.” Accordingly, our Boilerplate Agreement precedent does not define the term “Agreement.” Note as well that, in accordance with the Style Guide, all our firm precedents use the phrase “this agreement” in lowercase letters.
According to Ken Adams, a leading authority on contract language, the definite article “this” in references to “this agreement” makes it clear which agreement is being referred to.
It is also not necessary to define the term “agreement” as including any subsequent amendment, supplement, restatement, or replacement. If there is in fact a subsequent amendment or a supplement, the later document would clearly refer back to the original agreement. If the agreement is restated or replaced, then whatever is in the existing agreement will in fact be restated or replaced by the terms of the new one.
Notwithstanding the above, if the agreement includes cross-references to one or more other agreements, when you define those other agreements you should refer to each of them "as amended, supplemented, restated, or replaced or from time to time”, where appropriate.