Notices: obligation v method

[neilzone]

The current language is:

The parties shall send every notice, demand, consent, request, or other communication required or allowed by this agreement:

by e-mail to the address the other party provided with their signature; or

by overnight courier, with signature required for delivery, to the address the other party provided with their signature.

If you're a Ken Adams' fan, you'll recall that he suggests the use of "shall" is in place of "has a duty to", and is a means of imposing a contractual obligation - something for which the other party could sue for breach, if it were not followed.

In the context of the notices clause, I don't think we're aiming for a contractual obligation, giving rise to a claim for breach of contract if not followed. I think we're setting out the prescribed mechanism of doing something, with the "penalty" for doing it some other way being that it is not effective notice.

So I wonder if the opening words might be revised to:

To give a notice, demand, consent, request, or other communication required or allowed by this agreement, a party must send it ...

This establishes the only way of doing it (failure to comply means notice etc. is not given validly), but stops short of being an obligation.

What do you think?

I think this also addresses another potential unintentional side effect of the current language, which arises from the combination of "every notice ... by [email] or [courier]", which is the possibility of an interpretation of compelling a party to pick one method, and use it for all notices. i.e. they have to send every notice by email, or every notice by courier, but not a mix of both. Perhaps a stretch, but it was how I read it at first!