I received the following inquiry from longtime reader Vance Koven:
I’ve been trying to find someplace in MSCD or your blog where you address the couplet “in and to,” which usually dribbles out after “right, title and interest” in referring to, say, a claim to or a license of intellectual property. Came up empty, yet I was sure it was there somewhere. If not, is this something you’d consider addressing? While the phrase seems redundant, it’s not always easy to determine which of the words is the better one to use.
Here’s what I think about in and to.
Use of multiple prepositions might be prompted by use of multiple verbs, the urge being to match each verb with a proposition suited to it. That’s the theory, but the reality tends to be a bit messier. The example you offer provides an instance of that, as the three verbs are followed by two prepositions.
It might be that whoever uses the language in your example thinks that one of the prepositions matches two of the verbs. But I think it likelier that anyone using in and to is doing so simply because of the rhetorical flair that comes with redundancy.
That much is suggested by instances of in and to with a single verb. Here’s an example from a draft sent to me yesterday:
a separate license agreement with [Acme] that perpetually and irrevocably grants [Acme] all rights in and to [the widgets]
When in and to is used with a single verb, it might be that the drafter thinks that somehow each preposition offers something that the other doesn’t. But that’s preposterous. A likelier explanation is that either the drafter has been seduced by the rhetorical glory of redundancy or is copying verbiage prepared by someone else who was.
For another instance of the rhetorical urge and multiple prepositions, see this post about indemnify for, from, and against.
I suggest that you use only the verbs that you really need, and that you match each verb with the one preposition suited to it. If one preposition works with more than one verb, so much the better.
Regarding which preposition to use with grants Acme all right [?] the widgets, I’d use to, and I wouldn’t lose much sleep over the choice.
Ken:
I suspect that one rationale for keeping the couplet (i.e. not its origin, but a later-added spurious explanation) is that one can have an ownership right to a thing, yet not have all intellectual property rights in it. For example, if I buy the ownership right to a widget, I don’t necessarily buy the ownership right to the patent of gettin’ widgety.
Anyone who thinks, though, that adding a couple of “in and to” resolves issues about who owns intellectual property rights is fooling themselves.
Chris
My reasons for recommending “in” are weak. However, to the extent it doesn’t matter to Ken, I say make it “in”. I agree that no one should lose sleep over the choice and I agree that If people are trying to distinguish between title to tangible property and IP by use of prepositions, they are deluding themselves…
The best I’ve got is that when we say we have a right TO something, we’ve omitted the verb, namely, the right to HAVE something. To say, “Its mine”.
And for most people that’s fine. The action is understood without further expression.
But in contracts, we’re being more precise about the rights about things between people. I find it useful to be able to say someone has rights in a thing without expressing what those rights permit the rights holder to do, especially when dealing with all the rights, like in Ken’s example.
Much is probably achieved by saying “to” where I would write “in”. To some extent, I think I found it helpful when I read that property is a right in a thing, and not the thing itself, which is an important distinction. But whether I would have learned as well if the author had said, “Property is a right to things”, I’ll never know.
No, Ken! Recommend “in”! We have rights IN things! not TO things! TO needs an infinitive verb. A right to POSSESS things; to WASTE things. And while I’m with you that there is no use to drafters loosing sleep over the choice so long as they make one, have them choose IN!
I’ll let readers weigh in on this vital issue before taking a final position …
I know it’s not vital, Ken, despite all the exclamation points and all-caps communicating otherwise.
One has to take a position on all issues, big and small!
I’m not sure that’s true, but you’re a good sport!
Cool! So while you exercise your right in free speech to say that, I’ll exercise mine *to* it to say that it doesn’t always seem to work that way.
My sense is that the drafter is attempting to be grammatically correct, as in your example title is usually followed by to, while interest is followed by in. If there isn’t a convention that you can just use thte last one, ie right, title and interest in, because interest comes last in the trio and takes in, then I would like to propose such a convention.
If people are trying to distinguish between title to tangible property and IP by use of prepositions, they are deluding themselves.
An example of really awful drafting using multiple prepositions which ended up creating a meaningless sentence is found in Re Gulbenkian:
” any person or persons in whose house or apartments or in whose
” company or under whose care or control or by or with whom the
” said Nubar Sarkis Gulbenkian may from time to time be employed
” or residing …”
and Lord Upjohn’s analysis in:
http://www.bailii.org/uk/cases/UKHL/1968/5.html
What is shaming (to the legal profession) is that an almost identical wording had been found to be meaningless in Re Gresham but the phrasing seems to have ended up in a precedent somehow nonetheless (to be fair Re Gresham was decided after Calouste Gulbenkian’s death, but still…).