My pet hates in contract drafting. Part 1: 'for the avoidance of doubt'. A plea.

In the matters I mediate and determine, I keep meeting a few of the same hackneyed phrases. My pet hate: 'for the avoidance of doubt'.

Its cousins are just as common, among them 'to avoid doubt', 'to remove any doubt', 'for the sake of clarity', and 'for greater certainty'. Drafters reach for these phrases to reassure the reader (or, perhaps, themselves) that what follows is settled. In many cases, those words do the opposite. They introduce doubt where there was none, and they let the drafter avoid asking whether the sentence was needed at all. Even worse, in some cases, they paper over an ambiguity that persists regardless.

The phrase isn't neutral. It carries an implicit message: we thought there was room for argument here, so we are heading it off. If a clause was clear, announcing that you are avoiding doubt about it invites the reader to wonder what the doubt was. I am certainly not the first person to rail against the phrase, but I particularly like the explanation given here, that it is the drafting equivalent of saying 'I love you, but' . Whatever precedes the qualifier suddenly feels provisional if not false.

That is my main objection. A clarification introduced by 'for the avoidance of doubt' cannot sit quietly beside the operative words. It changes how they read. Where the earlier clause was plain, the phrase makes it look contestable. Where the earlier clause was genuinely broad, the 'clarifying' example can be read as the outer edge of what was intended, so that unmentioned things fall outside. Either way, the drafter has created a need for interpretive work that should have been avoided.

Ken Adams, a leading writer on contract drafting and the author of a fabulous text on the subject, puts it categorically: to the extent what follows the phrase is meaningful, the phrase is unnecessary, and to the extent it is not, it is noise. In my opinion, it has no settled legal meaning of its own, and it will not rescue an unclear provision. A clause that needs the phrase is usually a clause that needs rewriting. (See Adams: here and here.)

And that is my second problem. 'For the avoidance of doubt' is a crutch. It lets the drafter bolt on a patch instead of fixing the problem. I understand that, very often, it is a product of negotiated terms, where each side adds exceptions while trying politely to leave as much of the other party's language untouched as possible. So they conclude that a clause can only be rescued by adding 'for the avoidance of doubt, X'. The better solution (for clarity, for certainty, for the client's interests) is to go back and say X properly the first time.

Please don't put me in the position of having to interpret this mess.

If you feel the urge to write the phrase, treat it as a diagnostic. It is telling you the earlier words are not doing their job.

If another party wants to put it in, politely point them to this article, or to Ken Adams, or to any number of others making the same point.

Let's look at some simple examples based on my experience, but anonymised.

Sometimes the words add nothing, because the point is already covered. If so, delete them. Consider: 'The Contractor must maintain the insurance required by this clause. For the avoidance of doubt, the Contractor must maintain that insurance until Practical Completion.' If the obligation already runs until Practical Completion, the second sentence is redundant. If it does not, say so in the operative clause: 'The Contractor must maintain the insurance required by this clause until Practical Completion.'

Sometimes the words are trying to clarify a genuine ambiguity. If 'business premises' was meant to include premises the licensee leases as well as owns, define it that way. A clause that reads, 'The Licensee may use the Software at its business premises. For the avoidance of doubt, this includes premises it leases' invites the argument that leased premises were doubtful in the first place, and may even be read to exclude premises occupied on some other footing. Just say: 'The Licensee may use the Software at any premises it owns, leases or otherwise occupies for its business.'

Sometimes the words do not introduce a clarification at all, but rather a substantive rule dressed as a clarification. That might be an exception, a limit, or a fresh authorisation. This is possibly the most damaging use, because labelling a substantive term as just a clarification invites a decision-maker to read it down, or to puzzle over how it squares with the clause it appears to contradict.

Take an acceleration regime that gives a Superintendent power to direct acceleration, followed by: 'For the avoidance of doubt, the Contractor need not comply with a disputed acceleration direction until the Superintendent confirms it'. That is not avoiding doubt. It is creating a conditional right to withhold performance until another event occurs, and it deserves to be stated as the operative rule it is. Where the second clause genuinely qualifies the first, say so directly: 'Notwithstanding clause [X], the Contractor is not required to comply with an acceleration direction it has disputed in writing unless and until the Superintendent, having considered the Contractor's reasons for dispute, confirms the direction.'

The same discipline covers limits and permissions.

State a limit as a limit: 'The Consultant's liability under this clause will not exceed $Y.'

State a permission as a permission: 'If the Works are suspended for more than 20 business days, the Contractor may terminate by notice'.

No clarification, introduction, or apology is needed, but they are often included.

Is there ever a place for the phrase? I guess I could imagine a situation where the phrase is genuinely clarifying, but it is so commonly misused or abused that it is not worth the risk of being misunderstood or written off as sloppy rather than careful drafting.

Good drafting is not a matter of reassuring the reader that you meant what you said. It is a matter of saying it once, plainly, so that no reassurance is needed.