What Is Surplusage in Business and Legal Documents?

Surplusage can be defined as words, phrases or statements not necessary for the intended purpose of a document, such as a contract or other legal document. These would be superfluous words that, while true, have no particular legal effect. As such, they can be legally disregarded.

What Is an Example of Surplusage?

When writing a contract, a business person might include a statement such as “This document is to be considered binding between the two parties involved” that is surplusage as this is implied in any legal agreement. Another example would be including additional clauses in a lease agreement about snow removal or landscaping when these services are not part of the agreement.

Why It Is Important to Avoid Surplusage in Contracts and Other Legal Documents?

Including unnecessary words or phrases in a contract, agreement or other legal document can potentially result in ambiguity or confusion. This could lead to misinterpretation, resulting in disputes or legal action. Additionally, when making an argument in court, having a document that is concise and to the point is crucial. Surplusage can muddy the waters and make it difficult to make a clear and concise argument.

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What Is the Difference Between Surplusage and Obiter Dictum?

Surplusage and obiter dictum are often mistaken for one another, however, they are distinct. Obiter dictum, which roughly translates to “other sayings”, are comments, not related to the opinion written in a court document, but are expressions of opinion made by a judge when deciding a case. As such, they cannot be used to form a binding precedent. Surplusage can be disregarded because they are understood to have no legal effect.

Related Legal Concepts

Understanding surplusage is particularly important when dealing with issues like harmless error in legal proceedings, where courts must determine whether unnecessary language affects the outcome of a case. Contract drafters often encounter situations involving harassment clauses or hazard insurance provisions that may contain superfluous language. The concept also relates to headnote preparation, where legal editors must distinguish between essential holdings and unnecessary commentary that could be considered surplusage.

The Bottom Line

Surplusage represents unnecessary language in legal documents that can be disregarded without affecting the document’s legal meaning or enforceability. While such superfluous words may be factually accurate, they serve no legal purpose and can potentially create confusion or ambiguity in interpretation. For guidance specific to your situation, always consult a qualified, licensed attorney.