Corporate & Securities Law

Revisiting ?To the Best of Its Knowledge? (Plus Thoughts on the Marketplace of Ideas)

By Ken Adams

While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement:

Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary to what appears to be its generally accepted meaning).

That happens to be diametrically opposed to my own view. Here’s what I said in this April 2007 blog post:

But I recommend that in phrasing a knowledge qualification you not refer to the best of someone?s knowledge. It adds nothing, because to the best of Acme?s knowledge means exactly the same thing as to Acme?s knowledge.

In this context, as in the phrase best efforts, the word best constitutes rhetorical emphasis. In general conversation, my adding the best of when attesting to my knowledge of a given matter perhaps represents my way of according my assertion an extra measure of importance. This sort of rhetorical emphasis has no place in the limited and stylized prose of contracts.

Furthermore, adding the best of exacts a cost. For one thing, it adds three useless words, and unless you prune useless words whenever you see them, they soon add up. But more perniciously, using the best of could lead a reader?perhaps a judge!?to assume incorrectly that it implies some sort of heightened level of knowledge, perhaps involving a duty to investigate.

When I encounter conflicting views of this sort, I feel bad for the nonspecialist reader. You consult a treatise when you don’t have the time or inclination to master the subject in question. Necessarily you’re relying on it to be accurate, and you’re not in a position sort out what makes sense from what doesn’t, or to referee disagreements with other commentators.

The only way to improve any body of knowledge is through the marketplace of ideas. Two commentators differ on a given issue? Have them thrash it out?may the best idea win! It does no good to tiptoe around a competing idea for fear of offending anyone. That’s the spirit behind this and a number of other recent posts. I do my best to be respectful; if I fall short, let me know.

Full post as published by AdamsDrafting on September 20, 2009 (boomark / email).