To Send or Receive, That Is The Question.

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This is about “giving” notices in a lease or mortgage or SNDA or whatever. First, many, many of these documents call for the “giving” of notices, but don’t define what it means to “give.” This is especially important when those same documents start some sort of clock running when notice is “given.” Of course, some documents are perfectly drafted, and if those are the only kind you ever see, just sign off and brew another cup of coffee. If, however, your experience is same as this writer’s, you might want to Ruminate with the rest of us.

Let’s say party A has to do something within three days after notice is given. Should that be measured from when it receives the notice or from when the notice was sent? Suppose party B has to give notice of the exercise of an option, and it is qualified by TIME BEING OF THE ESSENCE? Is the cut-off date when the notice is sent? received?

Of course, the answer is – “it depends.” Even if the document has a terrific definition, but it says that notice is deemed given on the third day after it is put in the mailbox, or even the third business day, how much time does it leave party A to “cure”; by when must party B mail its renewal notice? Why should the answer depend on whether there is an intervening weekend or holiday? Unless a trap is intended, why should one have to recalculate the date when the document very precisely spells one out?

Those are simple, basic examples, and the answers aren’t that important because what the questions really point out is that the answer is “situational.” It depends on the subject matter at hand. Using only “given” or “when received” or “when sent” throughout a document simply doesn’t make good business sense to both parties at the same time. Sometimes it works for one party, but not the other. Sometimes, it works for the other but not for the first party. If notice is intended to give someone an opportunity to react, the clock should start when a notice is received. If it is intended to set a date by which a party must gain a certain right, such as an option right, saying “when sent” makes sense.

Yes, before anyone jumps out of her or his skin – a party could thwart receipt by “hiding in the cellar.” That, too can be handled (and easily), so why let the tail wag the dog?

If you compare the number of sentences to the number of questions in this Blog entry, you’ll see a lot of questions. That’s because I’m Ruminating. Pitch in – Ruminate with me. What’s your approach? Boilerplate definitions? Crafting each notice requirement based on its substance? Share your thoughts with the rest of us.

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Comments

  1. Harvey M. Haber, Q.C. – See Pages 531- 533 of my Book entitled: “The Commercial Lease: A practical Guide” – 4th Edition which specifically sets out delivery of Notice by (i) personal delivery, (ii) by registered mail, (iii) by fax, or (by email.

  2. I consider notice as “given” when it is received or refused by the other party and the medium used can produce evidence of delivery or attempted delivery. I still see leases where notice is deemed “given” 3 days after it is dropped in the mailbox.. Really dumb with today’s alternative modes of delivery. I don’t like fax notices (despite Harvey’s scholarly book) because it is too easy for an admin to accidentally scoop it up from the fax tray along with some other papers.

  3. I agree with Joel that notice is best defined as ‘upon receipt or refusal of receipt’, but the language of the contract controls. As I too do not like fax notices, for the same reason Joel states, I tend to delete that option from my notice clauses. We religiously follow the notice requirements in the lease… including the ‘with a copy to:’ clause, as the failure to provide notice to all required parties could invalidate the notice. Other issues, such as what to do if the notice date falls on a holiday, are sometimes covered by the contract. If not, it seems to me that many courts will extend the notice deadline to the the business day anyway, if for no other reason than to promote civil/cooperative relations between lawyers. I may be wrong on that in some jurisdictions, but I suspect that is the general rule…. of course to be safe, send the notice a day early.

  4. Rob Krapf says:

    A late comment. For a time I tried to draft my documents with a notice provision whereby the giving of the notice (e.g., when notice is needed to gain a right or to prevent the loss of a right) was at the time of mailing or fed exing, but the period for performance following notice started with when the notice was actually received or receipt refused. I don’t recall who I stole the idea from, but it seemed to make a lot of sense, unless you intend your notice provisions to merely be traps for the unwary. However, I got so much negative reaction from lawyers on the other side — that either they couldn’t understand it or found it “too confusing” or just were of the “trap for the unwary” camp — that I gave up. I agree with the comments of others about fax notices, though I have some clients who insist on them; and even more I object to email notices unless they are required to be followed up with a hard copy notice.

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