(f) ‘The same’ and ‘that certain’

A drafter sometimes prefers not to repeat a bunch of actions or subjects but to refer to a preceding list of actions or subjects by the words the same. For example:

Licencee shall not acquire any rights under any Licensor trade mark, trade name, logo or product designation under which the Technology was or is marketed and shall not make any use of the same except as expressly authorised in writing by Licensor.

The reference the same is in most instances ambiguous or too generic; does it refer to all such actions or all subjects or to either one of them? Is it sufficiently clear what is intended or are exceptions imaginable? Does the the same refer to the actions or subjects or rather to the consequences of the action or to any related subjects? If such ambiguity is not likely to occur, it is less archaic or less legalese, and more precise, to simply use a pointing word.

  • Company shall furnish to Lender promptly after the same become publicly available copies of all periodical financial statements or financial reports and all press releases.
  • In respect of any Loan made by it under this Agreement, each Agent in its individual capacity and not as Agent shall have the same rights as any other Lender and may exercise the same [these rights] as if it were not an Agent.
  • Agreement means this document, as [delete: the same may hereafter be] amended or supplemented from time to time.

Note that it is recommended not to define the “Agreement” at all and that any amendments or supplements are likely to be included in the scope of any such definition as this will be achieved by the amendment or supplement itself.

That certain agreement. Using that certain to identify an existing agreement is archaic legalese. For example:

On 29 December 2009, the Parties entered into that certain share purchase agreement related to the sale and transfer of XYZ.

Instead, apply the best practice rule for identifying an agreement in a definition (see best practice rule 21 in section 7.1(c)) and simply use a or an:

On 29 December 2009, the Parties entered into share purchase agreement related to the sale and transfer of XYZ.

Note that the title of the share purchase agreement is not capitalised. If it had been, it would be appropriate to print it in italics (as it appears on the cover page).

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