I think it’s time I said something about right, title, and interest, no?
You just know that right, title, and interest is a bit of inflated legal phrasing that serves only to make legal prose suitably sonorous. That the three elements are invariably kept in the same order is one sign that their function is incantatory and not substantive.
But let’s look more closely at right, title, and interest. Let’s start with the entry in Garner’s Dictionary of Legal Usage (3d ed. 2011), the only serious analysis I’ve found:
right, title, and interest. This phrase, one of the classic triplets of the legal idiom, is the traditional language for conveying a quitclaim interest. … Technically, only one of the three words is necessary, as the broad meaning of interest includes the others: though you can have an interest without having title and perhaps without a given right, you cannot have title or a right without having an interest.
Still, some traditionalists prefer to keep from varying the age-old idiom, which uses only two additional words. Why, they reason, create a test case with their documents merely to find out whether interest is indeed broad enough to encapsulate right and title?
American lawyers, when given the choice in transactional drafting—the pros and cons on both sides of the argument—split about equally on the two sides.
I’m comfortable with Garner’s conclusion that interest encompasses right and title. For one thing, it’s easy enough to find caselaw to that effect. Here are a couple of random examples:
In common parlance the word ‘interest’ is broader and more comprehensive than the word ‘title,’ and its definition in a narrowed sense by lexicographers as any right in the nature of property less than title indicates that the terms are not considered synonymous. In re Baldwin’s Estate, 21 Cal. 2d 586, 591, 134 P.2d 259, 263 (1943).
In the context of property law, a “right” is a “legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act,” and an interest “generically … include[s] varying aggregates of rights, privileges, powers and immunities and distributively … mean[s] any one of them.” Dennison v. N. Dakota Dep’t of Human Servs., 2002 ND 39, ¶ 13, 640 N.W.2d 447, 453.
I can understand a practitioner deciding that there’s no point in being adventurous and tinkering with right, title, and interest. In cranking out deals, expediency is usually the order of the day. But it’s my job to figure out what works best.
Furthermore, the phrase might have its roots in conveying a quitclaim interest, but it can now be found in all sorts of contracts. So cumulatively, it has gotten annoying.
I haven’t worked much with real estate documents, so I’m not about to tell anyone what to do with right, title, and interest in a real-estate context. (Cousin Joshua, are you there?) But for purposes of corporate and commercial contracts, I say the heck with it. Use just interest or some variant, unless the context suggests that something else is in order.
Of course, things only get real once we’ve seen some examples from EDGAR. So here are three, chosen at random:
Seller desires to sell and Purchaser desires to purchase all of Seller’s right, title and interest in and to [read interest in] the Property …
Executive acknowledges and agrees that the Company is and shall be the exclusive owner of all rights, title and interest in and to [read all interests in] the Inventions …
“Copyrights” means, with respect to any Person, all of such Person’s right, title, and interest in and to [read interest] the following:
When you get rid of right, title, and interest, you also get rid of the annoying in and to. (I know that’s of particular interest to @copiesofcopies!)
But how does this play out internationally? How about under civil law?