Looking for the meaning of For The Avoidance of Doubt?
What does it mean in contracts?
What are the essential elements you should know!
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For The Avoidance of Doubt Overview
If you have been dealing with contracts or contract professionals, you may have come across the phrase “for the avoidance of doubt” written here and there in the contracts.
Have you ever taken a step back to understand what it means?
Keep reading as I will tell you why the “for avoidance of doubt” phrase is used in contracts and the legal ramifications of such a phrase.
What Does For The Avoidance of Doubt Mean
In contracts and legal writing, the phrase for the avoidance of doubt is typically used to emphasize a particular provision, condition, or obligation or to exclude unwanted or undesirable interpretations of the legal text.
For example, if you state in a contract that the other party must comply with the other contracting party’s intellectual property rights, you may use the “for the avoidance of doubt” phrase to emphasize that it may particularly relate to a specific type of material so it’s brought to the attention of the other party.
Why Use “For The Avoidance of Doubt” In Contracts
First and foremost, a contract should be drafted in simple, clear, and unambiguous terms.
On this basis, the phrases “for avoidance of doubt”, “for greater certainty”, or “for greater clarity” appear to be useless as you should not repeat or clarify something that is already intended to be clear.
However, in practice, contract professionals may use this phrase in contractual provisions that can lead to different interpretations even when written clearly for the author.
As a result, the objective of the author is to emphasize or exclude a specific interpretation of the provision.
When To Use For The Avoidance of Doubt
Although you should aim at drafting your contracts as clearly as possible so you do not have to use the phrase for avoidance of doubt, there are instances that it may be justified to use it.
The first instance when it could be justified to use “for avoidance of doubt” is to start a clause or provision where the subject matter has already been addressed by the preceding clause.
This way, you are letting the reader know that you are addressing the same subject matter on purpose.
The second instance where you could use the phrase for greater clarity or for the sake of clarity is to introduce an overlapping subject or even a conflicting statement with a clause or statement previously made in the contract.
This way, you are letting the reader know that you are excluding a conflicting interpretation or you are ensuring that the reader interprets the provision in a certain way.
A third instance where you will want to use this phrase is when you make a statement that is very broad or unspecific whereas the subject matter that you cover following the avoidance of doubt phrase is specific and significant.
For Avoidance of Doubt Example
Here are a few examples of how the legalese for the avoidance of doubt is used in contracts.
Example 1
For the avoidance of doubt, the Parties agree and acknowledge that neither a Change in Control nor a Corporate Transaction has occurred on or prior to the date hereof and, therefore, all references to “Floor Value” in the Agreement
Example 2
For the avoidance of doubt, all references in the Custodian Agreement to the term “XYZ” shall be deemed to mean “Company ABC.”
Example 3
Notwithstanding the foregoing, the Performance RSUs shall be subject to any term of any employment agreement between the Company (or any Subsidiary) and the Participant that specifically references this Award Agreement (but, for the avoidance of doubt, shall not be subject to any other terms in such agreement or in any other individual agreement (including a Transition and Succession Agreement)).
Example 4
The “Average Month-End Net Asset Value” shall be the average of the month-end aggregate net asset value of the Accounts during the calendar quarter. If the period in respect of which a Management Fee is payable is less than a calendar quarter, then the Management Fee shall be pro rated accordingly. For the avoidance of doubt, for a given month, Average Month-End Net Asset Value shall be calculated based on trade date holdings plus accrued interest.
For Avoidance of Doubt Takeaways
So there you have it folks!
What does it mean for avoidance of doubt in a contract?
In essence, the phrase for avoidance of doubt is used to narrow a broad statement, emphasize a particular obligation, or exclude undesirable interpretations of legal provisions that are written in simple and clear terms.
Being a lawyer for many years and having negotiated high-profile and extensive commercial contracts, I do believe that this phrase can be useful at times.
However, it’s important that you do not use this quite often as every clause or legal text you introduce on an already existing topic or subject can introduce interpretation challenges and ambiguity in your contract.
If used with attention and care, it can help you draft your contracts in a way that allows the contracting parties to understand their legal obligations and potentially avoid legal disputes.
Some contracting professionals disagree with the usage of this phrase altogether.
I particularly do not share that view as there are instances when the terms of a contract can appear clear to the author but can lead to different interpretations nonetheless.
Now that you know what for the avoidance of doubt means, why it’s used, and how it works, good luck with your contracts!
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Now, let’s look at a summary of our findings.
Understanding For The Avoidance of Doubt
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