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The “this section” Error

The “this section” error is a self-reference such as “pursuant to this Section 3.4” which appears in a section other than Section 3.4. Did the author intend to refer to “this” section (wherever the self-reference appears) or another section (presumably 3.4)? A variation on this theme is a reference to “Section 3.4 above” when Section 3.4 is actually “below”, or vice versa. This error was found in 14% of documents analyzed.

This example is from an Equity Interest Purchase Agreement between Brooks Automation and Altar Bidco, Inc. dated September 20, 2021.

The Parties hereto acknowledge and agree that the provisions contained in this Section 6.10 represent the sole obligation of the Selling Companies…

Unfortunately, the quoted statement is found in Section 6.6(e), not in Section 6.10. Again, this raises the question of which section the author intended to reference. Because Section 6.6 is captioned “Financing”, and the sentence refers to financing, the reference should probably have been to “this Section 6.6” or “this Section 6.6(e)”. But it isn’t always clear.

Another example, from a Merger Agreement between Biomed Realty Trust and BRE Edison, dated October 7, 2015:

The portion of Section 7.3 Amount that remains unpaid as of the end of a taxable year shall be paid as soon as possible during the following taxable year, subject to the foregoing limitations of this Section 7.3.

Alas, this statement is found in Section 7.4. Interestingly, there are four references in the same paragraph to “this Section 7.4”, so we give it 80% of a thumbs up.

Finally, we return to the Musk / Twitter Merger Agreement.

As used in this Section 5.8, the term “Solvent” shall mean, with respect to a particular date…
For purposes of this Section 5.8, “debt” means any liability on a claim…

Both of those references appear in Section 5.9. Since neither “Solvent” nor “debt” are used in Section 5.8, the intent here was clearly to refer to “this Section 5.9”.

I question sometimes whether there is any real purpose to “this”, “above”, “below” and similar constructions, but in these cases “this” actually makes it possible to interpret the text in the way it was intended, notwithstanding the erroneous section number.


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