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.