Taking Care of Business (Day) - Defining "Business Day" in Agreements

M&A Agreements Boilerplate Series
February 6, 2020

One often sees a definition of "Business Day" in purchase agreements and other legal documents, usually to define when an event such as delivery of a legal notice or payment of an amount can legally occur. The idea is that it is somehow inconvenient to deliver an annoying default notice or a satchel of cash on a weekend or holiday when the recipient might be out enjoying a day at the beach and would not be paying attention to the notice or satchel.

In the USA, being all business all the time, "Business Day" is relatively easy to define, usually as "any day other than a Saturday, a Sunday or a day on which financial institutions in [pick a jurisdiction] are authorized to close." The latter would be the 10 official national holidays that at least all bankers (no dummies) observe, although many businesses do not observe all of them (such as Presidents' Day and Columbus Day).

That's all well and good if the notice or money is being delivered in the USA. But suppose you have an international transaction and the notice or money is being delivered in, say, Brazil? In Brazil, people like to enjoy life and consequently they have way more national and other holidays on which bankers can close shop than in business-crazed America. Sixteen to be exact (at last count), some of which are optional (whatever that means), not counting one day that each state can declare as a holiday and four more that a municipality can declare. So in some cities in Brazil, that means potentially 21 non-Business Days a year (in addition to weekends, which is a loose term in Brazil that could stretch for four days or more, especially during Carnaval) on which no one will be home to receive a notice, no matter how critical.

Not to be outdone, Colombia has 17 national holidays, including Battle of Boyacá Day (August 7), which was the day in 1819 when The Great Liberator, Simon Bolivar, spanked the Spaniards and freed Colombia (then known as New Granada) from their colonialist grip. Consider also Haiti, which has 14 local and national holidays, including Battle of Vertieres Day, the November 18 day in 1803 when the locals defeated the French in one of the key battles of the Haitian independence revolution. (There seem to be a lot of holidays celebrating the eviction of Europeans from North America; witness July 4 in the USA.)

Or consider the curious case of China, which has a whopping 32 national holidays (including an entire "Golden Week" off) plus seven occasions when a weekday becomes a day off and a weekend day that same week becomes a work day! Go figure (which is the point of this article).

I mention this because I once had occasion to work on a deal where the other side insisted on having "Business Day" defined by reference to four different jurisdictions, one of which was New York but the other three were Colombia, Haiti and the Dominican Republic. By the time you sorted out the different days that did not count as "Business Days" in each jurisdiction, you were left with precious few days within which to sneak up on someone and serve that notice or deposit that cash. Needless to say, the burden of finding a "Business Day" within which to work fell mostly on my client, so naturally I objected, and we ended up with only three jurisdictions, which was still two too many.

Which is to say that it is important to take note of the definition of "Business Day", often relegated to the "Definitions" section of agreements tucked away at the end of a hundred pages or more of mind-numbing legalese, where presumably no one has the stamina or attention span to pay much heed, especially those most affected.

Coupled with the delays that could result from sending a required notice overseas (I recently sent a document by "express, overnight courier" to Malta and it took three "Business Days" to arrive), a plethora of jurisdictions that one must consult to determine when a notice or payment can be delivered is fraught with opportunities to miss a crucial deadline, with potentially devastating results.

The simple answer to minimize this risk is to avoid the necessity of preparing a complex algorithm and consulting various calendars (remember, not all countries use the Gregorian calendar; according to Wikipedia, there are more than 80 calendars, among which are the French Republican Calendar (those French always need to be special), the Positivist Calendar (but no Negativist Calendar) and the Umma Calendar, popular in the Bronze Age) and simply provide that "Business Day" for purposes of determining when a notice, payment or other delivery can be made is defined by the jurisdiction in which the notice, payment or other delivery is to actually occur. So if the delivery is to a location in the USA, you only have to worry about 10 fairly standard holidays whilst if the delivery is in China, you will need to consult the Chinese calendar to figure out the 32 national holidays plus the aforementioned shifting weekdays/weekends, a daunting task even for Watson.

Perhaps we in the USA should take a cue from our foreign neighbors and come up with a few additional national holidays, such as my birthday (September 8), for example, which also conveniently doubles as the Day of the Lady of Charity (Dia de la Virgin de la Caridad del Cobre), the patron saint of my native Cuba and definitely a holiday in Miami. Just a suggestion.
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