This article is written by Gauransh Vyas pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute resolution from Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
When a dispute arises between the parties to a contract, the court will determine the intent of the contract and its terms/conditions. Therefore, it’s become very important to use specific words in a contract in the right place and the right sense. Choice of words is very important in a contract, if a party chooses inappropriate words it can have severe consequences in future or if you chose words as per the right context it will save you from the future hustle. Just like the sun in the sky, you can accomplish many things: comfort, sunburn, thirst and relaxation, same is with the word in a contract. The word you chose to include in your contract has a profound impact on your intention and the obligation you want to put on other parties.
Good word choice means using specific nouns, strong verbs, and excellent describing words like adjectives and adverbs. Good and specific word choices will add colour to your contract drafting skills and help make a contract airtight. The courts from time to time have pronounced the effects of particular words in legal documents. Even though many legal drafts continue to be drafted in the same manner as before, no account has been taken of the courts’ decisions so far. In this article, we will discuss the legal effect of “between” and “among” which are frequently used in drafting contracts and in various other legal documents. You will learn how they can cause difficulties and how they can be avoided.
General definition
There is a rule of grammar that “between” is used only to reference the relationship between two persons and things and “among” is used when there are more than two.
Example-
- All the profits shall be divided equally between A and B at the end of every month.
- All the profits shall be divided equally among A, B, C and D at the end of every month.
When to use between
When there is a comparison in the middle of two or more things then it requires the preposition “between” to be used. For example- In this semester you are required to choose one language course between Hindi, French and German.
There is a common misbelief that has been going on for a long time, that between is only used when there are less than two people or thing and in case there are more than two people or thing among shall be used as a preposition.
It is only a myth, we can surely use between even when there are more than two persons, places or things involved, as long as they are distinct or isolated.
When to use among
Generally, among is used in a sentence of collective arrangement. When something is in the middle of or in between a group of people or things, “among” is used as a preposition. Either it is surrounded by something or part of a group.
For example- I leave my residuary estate to my trustees to divide among such charitable objects as they shall in their absolute discretion select.
Here, among is indicating that something belongs to a certain group. We can also construe that among is used for indefinite, unspecified and non-distinctive relationships between groups.
Difference between “among” and “amongst”
Both “among” and “amongst” have the same meaning and they both are correct. They can be used interchangeably. The word among is most commonly used in writing and daily life oral communications
The word “amongst” is not used commonly because as per American English the word “amongst” is considered an outdated version of “among.”
Is among singular or plural
It cannot be classified as singular or plural. It is used to express the relationship between a singular or plural noun, verb, group, and collective noun in sentences.
Use of between and among in a contract
In all cases, use “between” as the preposition in the introductory clause of a contract, rather than among such as “by and between”. For example,
This Exclusive Agreement is entered into this ___ day of ___ 202__ (Effective date).
BY AND BETWEEN
ABC, a company with CIN ______ incorporated under the laws of India having its registered office at ______, hereinafter referred to as Company.
AND
XYZ, an individual with Aadhar No. _____ and permanent address _____, hereinafter referred to as Proposed Buyer.
According to The Oxford English Dictionary, it is not only permissible but preferred to use “between” in the place of “among” with more than two parties.
Example-
- All the profits shall be divided equally between A and B at the end of every month.
- All the profits shall be divided equally between A, B, C and D at the end of every month.
Both the sentences are correct. Among cannot be replaced with between in both cases.
“Among” and “between” have their specific meanings and are used differently. The distinction is not the number of people or things, 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. 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. So “among” is wrong, and “between” is correct.
When not to use between
In drafting many times, we use “between” and “among”. As we discussed earlier “between” is more suitable to use and also preferred most of the time but not at all times. Sometimes you have to avoid using between also otherwise it can cause unnecessary problems.
Example:
All my jewellery shall be divided between my son, A and daughters of my son, B which are X and Y.
This sentence cannot give a proper idea of the division of Jewellery and can be construed in two ways:
First, it might be construed as, giving a half share of Jewellery to A and the remaining half to A and B which is one quarter each.
Secondly, it might be construed as giving one-third share of jewellery to each A, X and Y.
The above-mentioned clause must be drafted to make clear sense of the division of jewellery. It can be drafted like this:
All my Jewellery shall be equally divided. one-third to my son, A, one-third to my granddaughter, X and one-third to my granddaughter, Y.
Comparison Table between “between” and “among”
| Parameter | Between | Among |
| Definition | “Between” is a preposition, is used in case of having a choice that involves distinct and individual things or places. | “Among” is also a preposition, used in the case of having a choice in a large group of things and people which are non-distinctive. |
| Time | It is used to indicate the things that happened in the middle of two or more people, things and places. | It is used to indicate the things that happened in the middle of more than two or a group of non-distinctive people, things and places. |
| Usage | “Between” can be used when we talk about more than two persons, things and places. | “Among” can be used when we talk about more than two non-distinctive persons, things, and places. |
| What do they imply? | The preposition “between” implies a figurative or a real location in the middle of two or more distinctive things, places or locations. | The preposition “among” implies a position in the middle of a large group that is non-distinctive. |
| For Example | India lies between Nepal, Pakistan, China, Bangladesh, Bhutan, Myanmar and Afghanistan.Don’t eat between meals. | An Indian woman among the survivors.He bought a house among trees. |
Conclusion
Word choice is very important in contract drafting, if you choose inappropriate words it can have severe consequences in future. The word you chose to include in your contract has a profound impact on your intention and the obligation you want to put on other parties. As we have discussed above with some examples, how prepositions like between and among can cause ambiguity to a clause of a contract so it is prudent to use them with their exact meaning.
There is a wrong belief that “between” is used only to reference the relationship between two persons and things and “among” is used when there are more than two. It is only a myth, we can surely use between even when there are more than two persons, places or things involved, as long as they are distinct or isolated. “Among” is used when something is in the middle of or in between a group of people or things. Either it is surrounded by something or part of a group. Both “among” and “amongst” have the same meaning and can be used interchangeably.
The distinction is not the number of people or things, 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.” In all cases, use between as the preposition in the introductory clause of a contract, rather than among such as “by and between”. As we discussed earlier with some examples, “between” is more suitable to use and also preferred mostly, but not at all times. Sometimes you have to avoid using between them also. Otherwise, it can cause unnecessary problems.
Bibliography
- Drafting (Legal Skills Series) | PDF
- between_1 preposition – Definition, pictures, pronunciation and usage notes | Oxford Advanced American Dictionary at OxfordLearnersDictionaries.com.
- among preposition – Definition, pictures, pronunciation and usage notes | Oxford Advanced American Dictionary at OxfordLearnersDictionaries.com
- Between or among ? – English Grammar Today – Cambridge Dictionary
- “Between” Versus “Among” When Listing the Parties to a Contract
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