Do you remember be and hereby is? In this 2007 post I dubbed it “the lamest drafting usage.”
Well, we now have another contender. I can’t believe I haven’t written about it previously. It’s—drum roll, please—agrees to and does hereby. The lameness is something to behold.
What makes it particularly lame? Primarily it’s the doubling up of verb structures to express one meaning, as in be and hereby is. But as a bonus, there’s the fact that each verb structure is itself lame. As we all know by now, agrees to is conducive to fights over whether you’re expressing language of performance or language of obligation; for more about that, see this 2007 post. And the does in does hereby is olde-worlde; see MSCD 3.23.
Let’s see some examples of agrees to and does hereby in the wild. I found these in a sink trap in the EDGAR public toilets:
… the Customer hereby agrees to and does hereby assign to the Mint all of its rights of recovery against third parties that are the subject of a claim and/or against whom a claim can be instituted …
The parties agree that any action brought by any party under or in relation to this Agreement … shall be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in Delaware.
But you can jazz up agrees to and does hereby with a couple of offsetting commas:
To the extent any such work of authorship may not be deemed to be a work made for hire, Employee agrees to, and does hereby, irrevocably, perpetually and unconditionally transfer and assign to the Company all right, title, and interest including copyright in and to such work without further compensation.
Hey, you can even add a little variety by reversing the order of does and hereby:
Employee agrees to and hereby does grant and assign to the Company any interest in and all rights and title to (including, without limitation, rights to patents, copyrights and all other proprietary interests) any and all inventions …
As if that weren’t enough, you can also use the verb after each of agrees to and does hereby:
The Participant agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his/her right, title and interest in and to all inventions …
Obviously, I say the heck with agrees to and does hereby and all of its variants. In fact, if any lawyer who is getting paid to create contracts for you uses agrees to and does hereby, be very afraid.
