for the avoidance of doubt

This phrase is commonly used in contract with the intention of clarifying the intention of parties when making the contract. It is preceded by a contractual term which intended to catch broad categories of an obligation, contractual term or subject matter, and used to refer to a more instance of the same class to ensure that it is expressly included in the terms of the contract.

In most instances – if not all - that the phrase is used, it is redundant and could be omitted without affecting the meaning of the contract.

Why is it used?

We do not know. Perhaps for emphasis; perhaps in an attempt to draft contracts forcibly. It does achieve either end.

Parties Intentions

In any event, when “for the avoidance of doubt” is used, it is intended to:

1. make clear to a person interpreting the contract that the specific instance of the obligation is intended to be included by the parties. This is the person with the role of construing the objective intention of the parties, and is ultimately the court.
2. increase the predictability with which the contract will be interpreted;
3. ensure that provisions elsewhere in the contract are less likely to create a conflict which would prevail over the specific instance, which the parties have seen fit to include in the contract.

Examples of For the avoidance of doubt

In the context of intellectual property rights, “for the avoidance of doubt” might be encountered as follows.

Each of the parties shall at all times use the intellectual property of the other in accordance with the terms of this Agreement.

For the avoidance of doubt, such intellectual property rights shall include the intellectual property not referred to in this Agreement.

In the context of a dispute resolution clause:

1. Dispute means “[…]”.
2. If the parties are unable to resolve a Dispute within 30 days of it first arising, the provisions of this dispute resolution clause shall continue to apply.
3. For the avoidance of doubt:
   1. all negotiations will be undertaken without prejudice to the rights of the parties in future proceedings;
   2. nothing in this Agreement shall prevent either Party applying for urgent interim relief anywhere in the world.

In each instance in the intellectual property clause above, the use of the phrase is redundant. The later instance (pulled from a “professionally” drafted contract) introduces confusion in the interpretation of the contract because the clauses commencing “all negotiations will” and “nothing in this Agreement” are terms which should exist as freestanding terms rather than being somehow tied to or qualified by the context of dispute resolution clause.