Today, I’m pleased to share a guest post from Kenneth A. Adams, the author of the terrific book, “A Manual of Style for Contract Drafting.” After I submitted a guest post on his site last week, I asked Ken to share his thoughts on one area of contract drafting. It is particularly relevant for companies that use employment agreements. I’ll share some of my own thoughts on the subject and on Ken’s book in some followup posts. My thanks to Ken for sharing his wisdom on this notable subject.
When drafting a contract, it’s good to be precise. But it might be that for purposes of a given provision, it wouldn’t work to precise, so instead you make use of vagueness and its uncertain boundaries—you use words such as reasonable. Or promptly. Or material. Although vagueness entails risk of dispute, it’s an essential tool of the contract drafter.
But some vague words offer nothing but risk. That’s because once you lose the reasonableness standard inherent in, for example, promptly, the uncertainty become unmanageable.
A good example of this is the phrase moral turpitude, a fixture of old-school contract drafting. A dictionary will tell you that turpitude means “depravity.” That doesn’t suggest a workable legal standard, and moral turpitude is no better, with one legal authority saying that it means “shameful wickedness.”
The problem with moral turpitude is that once you switch from a reasonableness standard to one geared to probity, it’s utterly subjective where on the spectrum from saint to sinner a given action falls.
My favorite bit of evidence on that score is the court’s opinion in Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. 2007). The court concluded that driving drunk isn’t an act of moral turpitude, but driving drunk without a license is. Go figure!
Despite its shortcomings, moral turpitude is often used in contract provisions that aim to give one party an out if the other party acts badly. In particular, it routinely appears in employment agreements as one of the grounds for termination for cause:
the Executive’s admission or conviction of, or plea of nolo contendere to, a felony or of any crime involving moral turpitude, fraud, embezzlement, theft or misrepresentation; . . .
Coming up with an alternative to moral turpitude for purposes of termination provisions requires that one consider more generally termination provisions that feature moral turpitude. I refer to such provisions as “termination-for-crime provisions.”
Continue Reading Guest Post: “Moral Turpitude” Is Drafting Turpitude