21/06/16 How to Use “DEEM”

e-legal lesson

In contracts, deem means to treat a thing as that which it is not or might not be, or as possessing certain qualities that it does not or might not possess. In other words, it’s used to create a legal fiction.
In contracts, deem is generally used in the passive and almost always with shall, as in Any notice given by personal or courier delivery shall be deemed given on delivery. However, because no duty is being imposed, it’s inappropriate to use shall with deem. Because deem applies to future events, you may use deem with will: Any notice given by personal or courier delivery will be deemed given on delivery.
You could use deem in the active rather than the passive voice, but that adds nothing other than awkwardness – The parties will deem given on delivery any notice given by personal or courier delivery.
It muddies the waters to use deem in a provision that doesn’t establish a legal fiction:
Any violation of the restrictions stated in this section 4.2 by any officer or director of the Company or any investment banker, attorney, or other advisor or representative of the Company will be deemed to be a breach by the Company of this section 4.2.
The date of exercise will be deemed to be the date on which the Company receives notice of exercise.