Legal Drafting Tip: Notice

Wednesday, June 1, 2016

The Notice provision tells parties how they can deliver effective notice to the other parties under the agreement[1]

Many of us pay little attention to this boilerplate provision. Perhaps this is because courts have taken a practical approach to notice provisions. If a notice provision is drafted permissively, notice, even if not given as outlined in the agreement, will be valid, as long as it is received by the other party, and the delivery method was not less advantageous to the receiving party than the method outlined[2]

Regardless, we recommend you take the time to consider the following:

  • It may not always be in a client’s interest to draft a notice clause in permissive form. While it may provide flexibility, the more comprehensively you deal with notice, the less room courts will have to apply interpretive freedom if a dispute arises.
  • Except for personal delivery, sending a notice does not guarantee that the other party has received notice. If other delivery methods are used, refer to the notice clause to ensure you understand what forms “deemed receipt.”
  • When identifying what the acceptable methods of providing notice are (for example, personally, by fax, or email[3]), consider whether, in your matter, certain methods are inappropriate.
  • Delete references to outdated or obsolete technology, such as telex or certified mail.
  • If you define “Notice” to mean “notice in writing,” do not add redundant references to “in writing.” 

1 Cynthia L. Elderkin & Julia S. Shin Doi, Behind and Beyond Boilerplate: Drafting Commercial Agreements, 3d ed (Toronto: Thomson Carswell, 2011).
2 See Ross v. The T Eaton Co Ltd, which is the leading case on mandatory versus permissive notices.
3 In his blog posting, Providing Notice by Email, Ken Adams discusses the issues around providing notice by email.