Updated: Sep 24, 2019
By Ken Adams
Ken Adams here. This is from this post on my blog. In contract drafting, sometimes choosing one word or phrase over various alternatives involves fiendish subtlety. Other times ... not. The post below falls into the latter category. But even if not a whole lot is at stake, you have to make a choice, so it might as well be a halfway principled one.
I received the following inquiry from reader Andrew Sinclair:
I couldn’t find any posts on the topic of whether to use “control”, “prevail”, or “govern” to resolve conflicting terms. I had a partner in China ask to change to change “prevail” to “control” when negotiating a contract. That suggested to me that the partner thought there would have been some legal difference, but I did not have an opportunity to ask.
I also noticed that between a US and European version of one of Amazon’s agreements (which are very similar to each other), the US version uses “controls” and the European version uses “prevails”.
Here’s another one, Google app terms in Ireland say “take precedence”, and the corresponding US terms say “control.”
In the above examples, the agreements are similar enough that the word change seems to intentional. It’s not that they’re entirely different agreements; it’s clear that someone started with the the foreign version and edited it to align with her jurisdiction. That raises the question: what is the significance of the word choice?
Here are the contrasting Amazon and Google provisions (emphasis added):
Amazon US: In the event of any conflict between this Operating Agreement and the Operational Documentation, the Associates Program Excluded Products page will control over this Operating Agreement, which will control over the remainder of the Operational Documentation.
Amazon Europe: In the event of any conflict between this Operating Agreement and the Operational Documentation, the Excluded Products page and the Trademark Guidelines will prevail over this Operating Agreement and this Operating Agreement will prevail over any of the other Operational Documentation.
Google US: If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL.
Google Ireland: If there is a conflict between this Google Apps Enterprise Agreement and the terms located at any URL, this Google Apps Enterprise Agreement will take precedence.
It’s interesting that people seem to have strong views about what words to use in this context. I can’t get too worked up about it. Here are my thoughts on the above alternatives, plus another popular option, govern:
prevail. It might be overkill to extend the battle imagery suggested by conflict—I picture one bloodied but triumphant document standing over the recumbent form of the other. On the other hand, the meaning is clear.
govern. I think this is unhelpfully broad.
take precedence. The notion of precedence suggests that Able goes before Baker, but that Baker might well go too. But in this context, one document supersedes the other.
control. A stroll on the SEC’s EDGAR system suggests that this is the favorite. But this meaning of control isn’t idiomatic.
So prevail gets my vote, but I might change my mind. (When I first posted this, I opted for control, but prodded my Mark Anderson’s comment I quickly switched my vote.)