Daryo Apr 29, 2019:

That's exactly my line of reasoning It makes sense to expect the same kind of distinction to be maintained throughout the whole list.

Frank Szmulowicz, Ph. D. Apr 23, 2019:

The paragraph repeatedly makes a distinction between proceedings/dissolutions/ that are
1) instituted by Supplier
2) instituted against Supplier
At the end, we have the parallel expressions
1) suffers or
2) incurs
Therefore, I presume, that the author's intent is to associate
suffers with instituted by and incurs with instituted against.

I also provide one telling definition in support of the above:
meaning of “suffer” to be done
by Denton Wilde Sapte LLP and PLC Finance
The High Court has held that for a company to “suffer” something to be done under section 239 of the Insolvency Act 1986, it must permit something to happen that it has the power to stop or to obstruct.

https://uk.practicallaw.thomsonreuters.com/0-501-5195?transi...

mike23 (asker) Apr 22, 2019:

Thank you all. I appreciate your answers and discussion.

Daryo Apr 22, 2019:

@ Björn Vrooman "... this is certainly not a non-PRO question" agree in principle, but when it starts being treated as such ...

As for the question itself:

Intuitively, you would "suffer" something that was imposed on you - wasn't your decision, you had no say in it happening (you got sued, you had some accident) while you would "incur" something that was your decision.

And if you look at this clause that basically says "if the supplier becomes financially unreliable, Buyer can terminate the contract" there is a similar distinction in enumerating all the situations that could release the buyer from the contract.

Agree with Charles Davis's reasoning.

Given the way how "suffer" and "incur" are being used in this ST, I have difficulties seeing "being pushed" and "jumping on your own volition" as being synonymous.

Charles Davis Apr 22, 2019:

@AT That is exactly the hypothesis I've been touting. I think may well be what the writer was thinking. Though I wouldn't put money on it. It's quite possible that the writer simply meant "undergoing" proceedings, whoever instituted them, and that this is just one of those knee-jerk lawyerly couplets.

AllegroTrans Apr 22, 2019:

Just an idea... To "suffer" proceedings = insolvency proceedings (e.g. a winding-up petition issued by a creditor) are issued against the supplier
To "incur" proceedings = insolvency proceedings are instigated by the supplier (e.g. voluntary debtor's winding-up)
I don't think it much matters in any case. This might be over-enthusiastic and unnecessary use of couplets - many lawyers are guilty of this.

Björn Vrooman Apr 22, 2019:

[Edit: Removed PS2--for the wrong reasons; it was fine, but I'm not going to repost it]. I also found some examples of "suffer or incur" on .gov pages (albeit not for the phrase "receiver, administrative...," as said before).

One example:
"As a result of Defendants’ acts, Delta has suffered and continues to suffer and
incur irreparable injury, loss of reputation, and pecuniary damages to be proved at trial."
https://docs.house.gov/meetings/IF/IF17/20160524/104976/HHRG...

So they have suffered and continue to suffer, but they have not incurred yet continue to incur?

Plus:
"Black’s Law Dictionary, 9th ed. defines 'incur' as '[to] suffer or bring on oneself (a liability or expense)'"
https://www.hlaw.ca/judgment-summary/court-orders-icbc-pay-i...

"The Texas Supreme Court has ruled that medical expenses are incurred at the time the services are rendered to the patient. Black’s Law Dictionary defines the term 'incurred' to mean 'when one suffers or brings on oneself a liability or expense.'"
https://files.texaspolicy.com/uploads/2018/08/16095059/Paid-...

Not sure asking government lawyers is a good idea =)

Charles Davis Apr 22, 2019:

suffer or incur I will say that there is no shortage of "suffer or incur" in UK governmental websites. Those who draft them may, of course, be echoing a familiar phrase unthinkingly, but you would have thought, in principle, that if "suffer" and "incur" are being presented as alternatives they can't mean exactly the same thing. The phrase occurs, for example, in the conditions for procurement of goods in the public sector; this one is from the Department of Education:

"the Supplier shall indemnify and keep indemnified the Purchaser and the Crown in respect of any actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which the Purchaser or the Crown may suffer or incur as a result of or in connection with any damage or injury (including death) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any act, omission or negligence of the Supplier or any of its sub-contractors."
https://assets.publishing.service.gov.uk/government/uploads/...

Perhaps we should write to UK government lawyers.

Björn Vrooman Apr 22, 2019:

... I agree with you. I'm not saying the writer couldn't have done this intentionally.

However, what may actually be more relevant to this discussion than a distinction made in a particular case is that I can apparently find more examples of this phrase on German(!) web pages.

This is almost never a good sign and most likely means that someone likes using the copy and paste function.

Happy Easter!

Charles Davis Apr 22, 2019:

@Björn I have no idea whether the distinction between "suffer" and "incur" stated in Jacek's reference is applicable beyond that particular case or whether it is something dreamed up by a judge in Brooklyn. Frankly it makes no difference to us either way, since it is a case about insurance and refers to losses, and that cannot provide a basis for determining what suffering or incurring proceedings might mean. I merely commented on it in passing, because it seems to suggest that "suffer" and "incur", applied to costs or losses, may not always be synonymous. They are quite often found together, which suggests that they may not be, despite what Adams says. Again, I have no view on that and it is not directly relevant to the case before us.

On the distinctions between bankruptcy, insolvency and liquidation, agreed, but once again that doesn't affect the argument about this phrase (though it may, as you say, be symptomatic of sloppy drafting).

The interpretation I've outlined is a guess, which is that the writer intended "suffer" and "incur" to correspond respectively to proceedings instituted against and by the Supplier, and that this is (part of) what the writer means by "analogous".

Björn Vrooman Apr 22, 2019:

PS Also, this is certainly not a non-PRO question. Please don't downvote this. Thanks.

Björn Vrooman Apr 22, 2019:

I agree, Charles... ...that it is poorly drafted.

Also, I rather follow Adams here (see link included in my comment to Phil) than one single case that someone else has found. I'm really sorry, but Jacek's quote is a bit misleading. Much further up on the page, it says "incurred" only. Then, it states that "This analysis, while specific to this situation, is useful in understanding how at least one court construed this important insurance and reinsurance term."

"To resolve the appeal, the circuit court had to construe the meaning of 'incurred' under New York law. New York law, held the court, defines 'incurred' for insurance purposes as 'to become liable or subject to.'"

Also, the court does not mention "suffer" once(!): https://www.koeslaw.com/cases/Metz Case (00034421).PDF

In short, this is not a good starting point, IMO.

Moreover, I don't think "instituted by...in insolvency laws" is good phrasing? Never mind that saying "bankruptcy or other insolvency" proves to me that whoever wrote this tried to throw in the kitchen sink.

Bankruptcy and insolvency are not the same and considering the other words used, I'm not certain this is of U.S. origin.

Best

Charles Davis Apr 22, 2019:

(2) In isolation, applied to proceedings, "suffer" and "incur" do seem to be synonyms; they can only be distinguished in the light of the rest of the paragraph, and that distinction remains, ultimately, a reasonable contextual guess. So this is poorly drafted.

Charles Davis Apr 22, 2019:

My take I think the idea behind Sina's answer is basically right, but that Phil's explanation expresses it more accurately. This paragraph envisages the liquidation of the Supplier as a result of (legal) proceedings instituted "by or against" the Supplier;"by" meaning by the Supplier itself (filing for bankruptcy, in US terms) and "against" meaning by its creditors. "Analogous proceedings" must, I think, refer to that same situation arising in another country. Thus I believe "suffer or incur" must refer to insolvency proceedings by or against the Supplier, and I would guess that "incur" is meant to refer to proceedings by and "suffer" to proceedings against. "Incur" could mean finding itself obliged to enter into proceedings; "suffer" seems to mean being subjected to them (in an action instituted by others).

References to "suffering or incurring" costs, expenses or losses are fairly common, and the distinction may be well be the one explained in Jacek's reference. What I think has happened here is that this couplet has been borrowed from a context in which it makes sense (apparently) and applied to a different context in which it doesn't fit.

(continued in next post)

Jacek Kloskowski Apr 21, 2019:

@philgoddard sure, i just found it interesting. On the other hand, it is common that a company may incur costs or suffer losses due to bk proceedings.

philgoddard Apr 21, 2019:

Jacek But it's not about losses, it's about legal proceedings.

Jacek Kloskowski Apr 21, 2019:

"Other courts are consistent with Metz. For example, in United States v. Goncalves, 642 F.3d 245 (1st Cir. 2011), the First Circuit Court of Appeals defined incurred as "to which one is subject," not "already imposed." And in 515 Ave. I Tenants Corp. v. Gutman Mgmt. Co., 29 Misc. 3d 1228A (N.Y. Sup. Ct. Kings Co. 2010) (citations omitted), a Brooklyn trial court distinguished between damages suffered and cost or damage incurred. The court stated that "suffered" means paid while "incurred" means become liable for. This distinction is consistent with the distinction between paid losses (losses already paid by the reinsured) and incurred losses (the reserves set by the reinsured on actual claims for which the reinsured, and ultimately the reinsurer, may become liable)."

https://www.irmi.com/articles/expert-commentary/incurred-def...

Daryo Apr 21, 2019:

Small technical "detail" In this text the "liquidation instigated by the [client] company" is the liquidation ***of this client company itself***.

Similarly, any other "proceedings" could be instigated either BY this company, or by someone else AGAINST this company.

José Patrício Apr 21, 2019:

The text begins: The Company may terminate this Agreement in the following circumstances…
And mentions the circumstances
The phrase “if the Supplier suffers or incurs any analogous proceedings” in any country
means that the Company may terminate this agreement in the circumstances mentioned before, whatever country may be