We’ve all seen those signature blocks for attorneys at the end of contracts, under the caption “Approved as to Form.”
But what does it mean?
In Frayda Bluestein’s 2009 blog on this topic she wrote that the caption suggests “ a limited approval – approval as to form rather than substance.” She further writes that inclusion of the caption demonstrates that the attorney is certifying “technical compliance with the law [but not] approval of the purpose, wisdom, or need for the contract.” We find this unsatisfying. If “approved as to form” means an attorney is approving the form but not the substance of the contract we are still left wondering: what is the “form” of the contract? what does “technical compliance” mean?
We found nothing informative as to meaning in North Carolina law and similarly came up empty handed in our search of Lexis’s Antieu on Local Government Law.
Practitioners are split.
We asked a few practitioners for their thoughts and responses came back in two camps. A few shared with us detailed meanings of the phrase including serving to clarify the scope of review and signify that the document had the necessary authority. However, most practitioners who responded said that the caption has absolutely no meaning in their opinion, and that they would never include it if it were up to them. Based on this split opinion, the meaning of “approved as to form” depends on who you ask.
What should you do?
So, if the phrase has no clear meaning, should you include it in your contracts? As far as we can tell, nothing in North Carolina law requires it.
If you are going to include it on your contracts, we recommend that you spend some time thinking about what you mean it to mean. And then, make sure that you are communicating with your key constituents (e.g., managers, department heads) to develop and document your mutual understanding of what the caption means in your jurisdiction. In our view, documentation of the meaning is crucial if you are going to use it.
We also recommend that you take this opportunity to clarify your role generally as it relates to the review of your client’s contracts. For example, do they expect you to just check the style and procedures? Do they think you are reviewing the “legal” provisions of a contract—think, indemnities, forum selection, or arbitration? Or is their expectation that you are generally reviewing the contract terms and providing advice or counsel as to the favorability of the terms? Each may be fine, but you should make sure that you and your client are aligned on your role to avoid any confusion, or surprises, in the future.
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