When you assemble the components of a contract that refers to schedules and exhibits, which should come first after the main part of the contract? The schedules or the exhibits?
Thanks to a reader inquiry, I’ve now considered that gripping question for the first time. I recommend you put the schedules first: Schedules consist of materials that could be in the main part of the contract but for one or more of various possible reasons are instead moved to the back. (See MSCD 4.60.) By contrast, an exhibit is a stand-alone document—either a document that’s currently in effect, such as the certificate of incorporation of Target Co., or the form of a document that’s to be effective sometime after signing. (See MSCD 4.57.) That being the case, it seems a bit illogical to interpose the exhibits between the main part of the contract and information in the schedules, seeing as they in effect constitute two parts of a single text.
In fifteen minutes of browsing on EDGAR I saw no consistency on this issue. (I also noticed that it’s commonplace for tables of contents to make no mention of exhibits and schedules; I recommend you include any schedules and exhibits in your tables of contents.)
About the author
Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.
Gripping question? The only gripping question is this one: when you have an abundance of schedules and exhibits, how do you grip them together to the contract? LMBell Reply
Larry,
I have devised a novel way to avoid using a wheelbarrow. I bring three one-time write CDs (DVDs if your data storage need is higher) and a Permanent marker. I have both parties witness the creation of the CDs, then each party signs and dates the CDs and label them as an Attachment and incorporate by reference into the Agreement.
I have used this to negotiate managed care payer agreements between HMOs/PPOs and hospitals for at least 6 years and it works like a charm. Maria K Todd, MHA PhD Reply
Does this mean that a legal description attached to a real estate purchase agreement is properly a schedule and not an exhibit? Reply
Jack: That’s correct, but I wouldn’t make a fetish of the distinction. Ken ReplyThis site uses Akismet to reduce spam. Learn how your comment data is processed.
Innovative scholarship. Extensive writings. Hundreds of Drafting Clearer Contracts presentations around the world. Commitment. That’s what makes Ken Adams the unmatched authority on clearer contract language.
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