I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say:
In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by and between.
It’s commonly held that whereas one speaks of a contract between two parties, the correct preposition to use in the case of a contract involving more than two parties is among. But according to The Oxford English Dictionary, it’s not only permissible but actually preferable to use between rather than among with more than two parties. That the pointless distinction between between and among is generally accepted is a good indication of the state of traditional contract language.
That said, whether you use between or among has no effect on meaning or readability, so it would be unhelpful to make an issue of it. Use between in your drafts. If a traditionalist insists on among because there are more than two parties, agreeing to make that change would be a painless concession. If the other side presents you with a draft that uses among, asking that it be changed to between would likely antagonize them.
If you think that between versus among is a worthwhile use of anyone’s time, you’re in severe need of reindoctrination. Please present yourself at 14 Five Bells Lane, Nether Wallop, Hampshire, England, with a tin-foil hat on your head, ring the doorbell, and say, “I’m here to learn about active drafting.”
I’m here to learn about active drafting. Ignore the hat.
Whilst I surely wouldn’t send back my opposite number’s draft with just that one change, ‘between’ for ‘among’, I wouldn’t hesitate to include that change with the rest of my proposed changes and a cover letter that says in part:
‘[Our client]* has instructed us to see that contracts we present to them conform to the recommendations for clear modern drafting style found in [MSCD], so you will notice a few proposed emendations that have no purpose besides such conformity. We hope you will not find them objectionable.’
_________________________
*In my humble establishment, elders have taught us to refer in correspondence to our clients by name and not as ‘our client’ on the ground that the latter is ‘patronising’. Being patronising is thought bad, despite the historical analogy of lawyer and client to the ancient Roman ‘patron’ and ‘cliens’.
I wouldn’t push the analogy any great distance, though, since a Roman senator could be put to death for taking a fee to advocate for a client. Applying such a rule to modern barristers might be popular, but not with barristers.
So I’m going to be that jerk that only writes when he disagrees. I agree with your conclusion, but I don’t agree with your reasoning.
“Among” and “between” mean different things. But The distinction is not the number of people but how the people relate to
each other. If the people are relating individually to each other, the
proper word is “between.” If the people are acting as a group,
the proper word is “among.”
Ironically, the people advocating saying “this is a contract among three people” are misusing it. The whole group isn’t agreeing with itself. That’s nonsense. The members of the group are agreeing with each other.
If you violate the contract, an actual aggrieved person will sue you. The group isn’t going to sue itself. Again, that’s nonsense. So “among” is wrong, and “between” is correct.
It’s not that it’s a pointless distinction’ it’s that people are making the wrong distinction. I suppose you could say that wrong definitions are pointless. But isn’t it better to say that they are wrong?
I’m not sure you can disagree with my reasoning, as I didn’t provide any reasoning!
The distinction you point out might be a valid one, but it’s irrelevant for purposes of the introductory clause.
This was exactly my reaction – and it’s an explanation I have given to dozens of junior associates over the years. Thank you for posting.