Posted by Lewis on April 28, 2005
In Reply to: Re: Written consent --- P.S. posted by Steve E on April 28, 2005
: : : : : : : : : Can someone please tell me the proper way to say the following...
: : : : : : : : : "You may not use the company logo without the EXPRESS WRITTEN consent of the CEO..." or "You may not use the company logo without the EXPRESSED WRITTEN consent of the CEO..." (Thank you)
: : : : : : : : Neither is very good. "Express consent" covers it all. You could also say, "Expressly stated consent." "Express written consent" and "Expressly written consent" are possible, but reduplicative, and sound awkward for that reason. Go with the first, "Express consent." It's unambiguous and will hold up in court. SS
: : : : : : : I omitted one alternative. You can just say "written consent," which covers it just fine, and is much superior to "express written consent" or any other combination of express and written. SS
: : : : : : When I was a child, back in the 60's thru early 70's, baseball announcers would say at the beginning of each game that you could not reproduce "the pictures, descriptions, and accounts of this game without the express written consent of Major League Baseball", and they'd emphasize "written", which means oral consent is not good enough.
: : : : : 'express' should be redundant, but as some people might try to argue that there was an implied agreement, it gets included. the 'written' part is to ensure there are no arguments based upon two people disagreeing about what was agreed.
: : : : : it would be better to say 'the logo must not be used without specific written permission signed by the CEO' - no room for misunderstanding and explains what is required in black and white.
: : : : : the problem stems from the legal principle that terms of agreement may be either 'express' or 'implied' [as well as 'incorporated'].
: : : : : it is a good principle, but can lead to problems.
: : : : : L
: : : : In legal writing it is important to remember the intent of the statement. In the example given, I am sure, that the CEO wanted the consent granted before the use of the logo because the CEO wanted to know in advance as to any risk, liability, damage, etc. that the use of the logo could potentially cause. If consent is sought after it is used any possible damage could already have been done. If I were writing this I would absolutely use "prior written consent" to cover the intent: must obtain consent; must be before the fact and must be in writing. All bases are then covered.
: : : Forgot the most important aspect: the word express does not cover when the consent is required--could be before or could be after. As another poster indicated it is 'express' vs 'implied which does not address the 'when.' To avoid this ambiguity, 'prior' is used.
: : if consent is obtained afterwards, then that would be because no harm was perceived to have been done by the formerly wrongful use. I think 'prior' is actually redundant because the CEO would only grant retrospective permission with knowledge of the consequences and with the right to restrain already extant.
: : just a thought.
: : L
: L--True, but using the word 'prior' is meant to contractually convey to the parties that the desire/intent is to prevent any potential damage before it happens rather than argue about it after it has happened. Somewhat akin to a warning. It also supports the merits for the damaged party for any lawsuits which may ensue from the other party using the logo without prior consent. If the document were structured soundly, the offending party would be in breach of contract, breach of their reps and warranties and would be required to fulfill their obligations under the indemnification provision--just to mention a few. So, when you use the word 'prior' you are making it very clear to the other party that if he does not get 'prior' consent, he is responsible for all sorts of damages, if any. I know it sounds silly, but in leg al writing one word can make the world of difference. In my contract drafting days (14 years) if I had not included this word I would have been read the riot act by the boss!
It's a bit like adding a clause that says that an agreement can be varied by consent - it is so patent that it is 'trite'. At least your boss could be bothered to read what you wrote - we get an enormous number of 'standard' agreements that do not make any sense, but are put forward by staff who say it is 'policy' that the agreement cannot be amended. there are a whole generation of idiots sending out leases, options, contracts etc. without (a) reading them, (b) understanding them, or (c) thinking about them. the culture has gone completely 'jobsworth' and the worst thing is that all these over-paid morons will not do anything about putting it right. in their contract it would probably say "the logo must be used without the prior written consent of the CEO of Dickheads PLC" and they would then refuse to put in the "not" if you helpfully pointed out it made no sense.