“Know All Men by These Presents”

Sometimes you just have to laugh. Or cry.

In my current guise as soon-to-be-globetrotting contract nerd, I was looking at a contract from the Philippines. The first thing I saw below the title and above the introductory clause was this:

KNOW ALL MEN BY THESE PRESENTS:

“WTF!,” says I.

I immediately turned to the SEC’s Edgar system, which told me that the phrase is included in 224 “material contracts” filed in the past year. In other words, you don’t see it every day, but it’s no rarity.

It occurs in bills of sale, instruments of assignment, releases, deeds, powers of attorney, stock powers, and the like, in other words short documents, usually signed by one party, that consist largely or entirely of language of performance, with the signatory giving something to someone. Here’s a stock power that uses the phrase:

KNOW ALL MEN BY THESE PRESENTS, That the undersigned, For Value Received, has bargained, sold, assigned and transferred and by these presents does bargain, sell, assign and transfer unto Helix Energy Solutions Group, Inc., a Minnesota corporation (the “Company”), the Shares transferred pursuant to the Restricted Stock Award Agreement dated effective Date, between the Company and the undersigned; and subject to and in accordance with such Restricted Stock Award Agreement the undersigned does hereby constitute and appoint the Secretary of the Company the undersigned’s true and lawful attorney, IRREVOCABLY, to sell assign, transfer, hypothecate, pledge and make over all or any part of such Shares and for that purpose to make and execute all necessary acts of assignment and transfer thereof, and to substitute one or more persons with like full power, hereby ratifying and confirming all that said attorney or his substitutes shall lawfully do by virtue hereof.

But you also find the phrase used in documents signed by both sides to the transaction—in other words, contracts—as in my example from the Philippines. Here’s an example from an “assignment of term overriding royalty interests”:

KNOW ALL MEN BY THESE PRESENTS THAT:

This ASSIGNMENT OF TERM OVERRIDING ROYALTY INTERESTS (this ” Assignment “) from Chesapeake EP Holding Corporation, an Oklahoma corporation, with offices at 6100 North Western Avenue, Oklahoma City, OK 73118 (“Assignor”), to Chesapeake Granite Wash Trust (the ” Trust ” or the “Assignee”), a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., Institutional Trust Services, 919 Congress Avenue, Suite 500, Austin, Texas 78701, is delivered to be effective as of 12:01 a.m., Central Time, July 1, 2011 (the “Effective Time”). Assignor and Assignee are sometimes referred to herein individually as a “Party” and collectively as “Parties.”

And here’s an example from what is described as a “deed of trust, security agreement, financing statement and assignment of production”:

KNOW ALL MEN BY THESE PRESENTS: That the undersigned LUCAS ENERGY, INC.,  a Nevada corporation, acting herein by and through its proper officers who have heretofore been duly authorized, and with its principal office located at 3555 Timmons Lane, Suite 1550, Houston, Texas 77027, (“Mortgagor”), and NORDIC OIL USA 1, LLLP, a Delaware limited liability partnership, whose principal office located at 3887 Pacific Street, Las Vegas, Nevada 89121 (“Mortgagee”), hereby agree as follows:

KNOW ALL MEN BY THESE PRESENTS is beyond fatuous. Aside from its oddball components—all caps, “men,” “presents”—it’s entirely pointless. Anyone who uses it is proclaiming, loud and clear, “I’m an unregenerate dinosaur! Stop me before I draft again!”

[Update: I enjoyed Ray Ward's musings on the "presents" part of the phrase; go here.]

Posted in Uncategorized | 16 Comments

  • Luke OBrien, Brightleaf

    Aarrrrggghhhh.  Total agreement here, Ken  (although, considering the subject matter, perhaps instead of the damn funny “WTF, says I,” you should have gone for the temporally parallel, “Prithee and by Odin’s hoary raven, quoth I.  “From whence in the stone-hewn annals of fornication dost this drivel find its ancestral headwaters?”).

    Every time I see this language—and sadly I do see it—I have to ask the drafter what purpose it serves.  Nobody ever has anything close to a decent answer.  And yet they still balk at removing it from their document.

    It’s almost as if they’re saying, “I have no idea why those words are in here.  And that’s precisely why I’m afraid to remove them.”

    Again…aaarrrggghhhh.

    • A. Wright Burke, M. Phil.

      Ruthless Ken has so infected me with zeal for the cause that I cannot keep from asking two questions:

      1     Shouldn’t it be just “whence” (meaning “from what place,” as “whither” means “to what place”) rather than “from whence”?

      2     Shouldn’t it be “doth” instead of “dost”? “Thou dost” find drivel, but “drivel doth” find headwaters. In a humble whisper, I ask if it might not be even better as “whence … findeth this [misbegotten] drivel its [foul] ancestral headwaters?”

      Total agreement that “KAMBTP” is unendurable in contracts, less so in deeds and other instruments of public record, since they are supposed to be notice to the world. 

      Actually, KAMBTP has to go for another reason: sexism.

      I tried to rewrite it to cure that defect, rejecting as too easy KAMAWBTP.

      Know ye, happy lads and lasses,
      the truth of what hereafter passes.

      Won’t do. Won’t do. Sounds as if it should be followed by a stage direction: “Exit, chased by Kenneth A. Adams, sore roth.”

    • texassa

      Beyond that, what about women? Yes, I know “men” is understood to refer to humans or mankind. But seriously, what about women? Language like this is so archaic and grating.

  • http://www.ipdraughts.wordpress.com/ Mark Anderson

    Ken, time to polish your coronet…

    ELIZABETH THE SECOND by the Grace of God of the United Kingdom of Great
    Britain and Northern Ireland and of Our other Realms and Territories
    Queen Head of the Commonwealth Defender of the Faith To all Lords
    Spiritual and Temporal and all other Our Subjects whatsoever to whom
    these Presents shall come Greeting Know Ye that We of Our especial grace
    certain knowledge and mere motion do by these Presents advance create
    and prefer Our Kenneth Adams to the state degree style dignity title and honour of
    DUKE OF CONTRACT DRAFTING. And for Us Our heirs and successors do appoint give and
    grant unto him the said name state degree style dignity title and honour
    of Duke of and by these Presents do dignify invest and ennoble him by
    girding him with a sword and putting a cap of honour and a coronet of
    gold on his head and by giving into his hand a rod of gold to have and to hold
    the said name state degree style dignity title and honour of Duke of
    unto him and the heirs male of his body lawfully begotten and to be
    begotten. Willing and by these Presents granting for Us Our heirs and
    successors that he and his heirs male aforesaid and every of them
    successively may have hold and possess a seat place and voice in the
    Parliaments and Public Assemblies and Councils of Us Our heirs and
    successors within Our United Kingdom amongst the Dukes And also that he
    and his heirs male aforesaid successively may enjoy and use all the
    rights privileges pre-eminences immunities and advantages to the degree
    of a Duke duly and of right belonging which Dukes of Our United Kingdom
    have heretofore used and enjoyed or as they do at present use and enjoy.
    In Witness whereof We have caused these Our Letters to be made Patent.
    WITNESS Ourself at Westminster the first day of April in the year of Our Reign Two Thousand and Twelve.

    • http://www.koncision.com Ken Adams

      Come back, KAMBTP, all is forgiven!

  • http://www.techlawnotes.com/ D. C. Toedt

    This past Tuesday, as executor of my parents’ estates, I closed the sale of a riverfront lot they owned. By coincidence, the buyers were the brother and sister-in-law a friend and classmate from law school; he represented the buyers in the deal.  It was a very pleasant transaction. 

    When we were negotiating the contract for sale, I drafted a short, plain-English deed.  It was fine with my classmate.    It was attached to the contract as an exhibit.

    The day before the closing, the title insurance company objected to the deed.  They sent me a form that they would accept.  It started out with (sure enough), “Know all men by these presents ….”

    I gave up and used (actually, adapted) their form. Grrr …..

  • Anne Glazer

    Seriously, I think a lot of lawyers get nervous if their documents are too short.  Need to beef ‘em up.

  • Saul

    Ken, may I (a commercial contracts lawyer in Jerusalem, Israel) offer a counterargument ? Firstly, let me say that I fully agree with your valiant battle to undermine bad drafting – though sadly I feel that it will take a long time for you to prevail, if at all (although it’s no less worth fighting for that). That said, I wouldn’t want to throw out the baby with the bathwater. There are some phrases which, although archaic and meaningless nevertheless have a nice resonance – and this is one of them. And, unlike other bad drafting that you have highlighted – of which the different levels of endeavours is one of my favourites – this does not do any harm (at least I can’t think of how it could). Let’s not expunge all references to bygone eras. It’s for the same reason that I wouldn’t see the need to remove the word ‘whereas’ at the top of a contract, even though it too has passed out of use in regular life. I feel the same about legal Latin – there’s a certain pithiness about sine die, a fortiori, prima facie, etc. which is just not captured by their English equivalents, assuming these even exist.
    Incidentally, I haven’t checked but, having worked in France for a time, I’m pretty sure that KAMBTP has its roots in medieval French, since their contracts say ‘par la presente’ meaning, ‘by this document’.
    I guess in a nutshell my opinion is that those who are fighting this battle should concentrate their main energies on those aspects of drafting which give rise to genuine ambiguity and/or (sorry!) lack of clarity while giving archaic yet essentially harmless phraseology a bye, at least for the time being.
    Best regards.

    • http://www.techlawnotes.com/ D. C. Toedt

      Saul, your response made me think of the thousands of still-extant ancient documents that are written in Latin and ancient Greek. Nowadays, hardly anyone can read these documents, because those languages have essentially died out from lack of widespread use.  

      Perhaps lawyers’ continued use of legalese serves to maintain a corps of readers who can read and understand still-extant ancient legal documents. That might be a useful thing. (Whether it’s worth the cost it imposes on modern readers is another matter.)

    • http://www.techlawnotes.com/ D. C. Toedt

      Saul, your response made me think of the thousands of still-extant ancient documents that are written in Latin and ancient Greek. Nowadays, hardly anyone can read these documents, because those languages have essentially died out from lack of widespread use.  

      Perhaps lawyers’ continued use of legalese serves to maintain a corps of readers who can read and understand still-extant ancient legal documents. That might be a useful thing. (Whether it’s worth the cost it imposes on modern readers is another matter.)

    • http://www.koncision.com Ken Adams

      Saul: I’m not immune to rhetorical grandeur, just not in contracts. Business aspires to be ruthlessly efficient. Why should contract language get a pass?

      And it’s never the case that a contract contains an archaism or two of the KAMBTP variety but is otherwise a model of clarity. Instead, such archaisms are indicative of an entire approach to drafting, and they’re a reliable sign that readers are in for a world of hurt.

      Ken

      • Saul

        Ken,
        your second point is well taken. If the archaism is necessarily followed by several pages of archaisms, if it is a harbinger of things to come, then it’s indeed a bad one.
        Your first point resonates, and I guess succinctly describes your philosophy, which, as I wrote, I agree with. What I’m trying to say is that the phrase KAMBTP is so obviously rhetorical that it’s not nearly as insidious as, for example, ambiguous language in the body of the contract or magic-wordery. (No court will ever be asked to parse KAMBTP for some kind of inner meaning.) Maybe a little bit of ‘rhetorical grandeur’, as you put it, can be forgiven in the light of this ? Unless of course it is a sign of what’s to follow, in which case we go back to your second point.
        Anyway, thanks for the blog and for taking on this battle !

    • Westmorlandia

      According to Garner, the phrase is a loan translation of the Latinism “noverint universi” (“know all persons”) – though it seems likely that, if it did not come to us through medieval French, French contracts were (and are) inspired by the same Latinism.

      In any case, while I fully agree that it does not, in itself, do much harm, it always makes my heart sink – both because it usually means I am about to read something atrocious, and because I feel a little sad about the philosophy of drafting that allowed the drafter to tolerate the phrase – or (worse) even introduce it to the document.

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  • PhilStudent

    Fatuous, yes, I agree with you; but it’s the norm here.

    • http://www.adamsdrafting.com/ Ken Adams

      I don’t know where “here” is, but wherever it is, it doesn’t matter that this misbegotten phrase is the norm. Any drafter is free not to use it; anyone who complains that it has been omitted would have to be a truly pathetic creature.