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The Passive Voice Has Its Uses - Adams on Contract Drafting Skip to content Menu Menu The Passive Voice Has Its Uses 27 September 2011 | Ken AdamsFor purposes of general writing, it’s best to be wary of using the passive voice. That’s even more the case when it comes to contracts. To quote MSCD 2.17:There are three drawbacks to using the passive voice. First, using the passive voice and including a by-agent unnecessarily adds a couple of extra words. Second, using the passive voice and omitting the by-agent obscures who the actor is. And third, the passive voice disrupts the normal subject-verb-object order of a sentence. Those drawbacks apply to any form of writing, but in contract prose, the stakes are particularly high—the consequences of obscuring who the actor is can be drastic. So in contract prose, you should always use the active voice unless it’s clear that the passive voice represents an improvement.MSCD 2.18 provides as an example of appropriate use of the passive voice If any Necessary Project Approval is revoked. If various organizations might revoke an approval, it would be counterproductive to insist on the active-voice version, If any Person revokes any Necessary Project Approval.Here’s another example one of my Penn Law students recently pointed out to me: After the Closing Acme will remain bound by article 6 of the Shareholders Agreement. Yes, that’s in the passive voice, but I don’t see any point in saying instead After the Closing article 6 of the Shareholders Agreement will continue to bind Acme. The reader is more interested in Acme than in article 6 of the Shareholders Agreement, so it’s appropriate to put Acme first. Categories About the authorKen 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 head of Adams Contracts, a division of LegalSifter that is developing highly customizable contract templates. 8 thoughts on “The Passive Voice Has Its Uses” Anonymous As always you posts are much appreciated. Thank you. Reply Matthew Farber Excellent post! Reply Andy Starkis The MSCD comment unfortunately misses the most important reason for identifying (and usually eliminating) passive-voice constructions: they are tone killers. If you’re writing to persuade someone of something or to get the reader’s attention, a wall of passive-voice constructions is like having a conversation over a cup of coffee (or other beverage) with someone who refuses to look you in the eye. She will look out the window, check out who’s around, glance at her watch, perhaps inspect her nails–all while she’s talking to you–but with barely a glance in your direction. Guess what? She doesn’t care about you. That’s how passive-voice writing comes across. On occasion, there’s nothing better (sometimes you do have to look out the window) but don’t leave the passive voice in without examining the alternatives. Reply Andy: I wager that you’re a litigation-writing guy. Contract language is more limited and stylized than litigation writing. It’s not its job to persuade anyone, and it doesn’t have a “tone,” any more than software code has a tone. And MSCD‘s observations on use of the passive voice are geared to the needs of the contract drafter. Ken Reply Andy Starkis Ken, I don’t disagree at all with the MSCD observations, but even in contracts and other transactional documents saying who does what is generally far better than announcing what will be done. The point in all cases is to not leave passive-voice constructions unexamined, an examination that must include weighing alternatives. By the way, contracts can and do have tone. Some time ago I wrote an agreement between two religious organizations (the sort of terminology I avoided) for one to rent shared space and facilities from the other. The businessman husband of one of the clergy folk involved was pleasantly astounded and said he’d never seen a contract like it. Years later, they are still working happily under that agreement, written in their language, not that commonly associated with lawyers. Reply Andy: I still don’t see that my analysis omits anything. And as regards the happy outcome of your rental agreement, I’d attribute that to its clarity, not to its tone. Getting rid of the dysfunction of traditional contract language requires surgery that goes well beyond what I’d associate with the notion of tone. Ken Reply Andy Starkis Actually, Ken, it was the tone, not the clarity. I could have drafted a perfectly clear document in fewer words that would not have worked as well. The difference we have lies in your analogy: computer code is read by computers; contracts are read by people. Andy: I’ve found that one can’t go very far debating contract language in the abstract. If you think that any of the language recommended in MSCD needs work from the standpoint of tone, I’d welcome your input. But bear in mind that I deal only with business contracts between ostensibly sophisticated parties; consumer documents are a different matter. KenLeave a Comment Cancel replyCommentName Email Website ΔThis site uses Akismet to reduce spam. 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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. Contact Ken164 Brompton RoadGarden City, NY 11530-1432(516) 318-6956kadams@adamsdrafting.com © 2025 Kenneth A. Adams Privacy Policy Cookie Policy Terms of Service Close , 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., Use the Active Voice and Keep the “Core” Together: Like litigation documents, contracts written in the active voice are generally easier to read. Because contracts obligate parties to act, the active voice is especially preferred..
Write in the active voice. The active voice eliminates confusion by forcing you to name the actor in a sentence. This construction makes clear to the reader who is to perform the duty. The passive voice makes sentences longer and roundabout. Who is responsible is much less obvious., The active voice is preferred over the passive voice. In the active voice, the subject of the sentence acts upon an object. EX: Martin (subject) bought (verb) a car (object). In the passive voice the subject of the sentence is acted upon by an actor. EX: The car (subject) was bought (verb) by Martin (actor)., What is the difference between the passive and active voice in writing? In active voice, the subject of the clause or sentence does the acting. In passive voice, the subject does not perform the action of the verb., By using active voice, drafters can convey complex ideas in a more direct and straightforward manner, reducing the likelihood of misinterpretation. This, in turn, facilitates more efficient communication and negotiation between parties., Clear and precise legal writing is essential for effective advocacy and communication in the legal field. Mastering the use of active and concrete language in legal documents can significantly enhance their readability and impact., Those drawbacks apply to any form of writing, but in contract prose, the stakes are particularly high—the consequences of obscuring who the actor is can be drastic. So in contract prose, you should always use the active voice unless it’s clear that the passive voice represents an improvement..