One function of recitals is to state, simply and succinctly, the purpose of the transaction. Different verbs can be used to accomplish that.
When what follows is another verb, one traditional choice is desire to (and no, I don’t endorse use of WHEREAS in the following examples):
WHEREAS, the Stockholders desire to set forth their agreement as to certain matters relating to the Company and their respective holdings of the Common Stock of the Company.
Here’s a suboptimal variant of desire to, using the old-fogey adjective desirous:
WHEREAS , the Assignors having made the above invention and filed application for Letters Patent of the United States thereon, and the Assignee is desirous of acquiring the same.
The other traditional option is wish to:
WHEREAS, the Creditors wish to specify their relative rights and priorities with respect to the KeyBank Collateral, the Consignment Inventory and the Goodman Collateral … .
Used less often than those two is a third alternative, want to:
WHEREAS , Titan wants to sell Deere the Products that Titan manufactures.
How do the three alternatives compare? Desire to has an odd steaminess to it. Wish to is fine, but perhaps a little genteel, a little Victorian—it doesn’t occur much in everyday English. Want to is the most colloquial option.
So I think that want to gets my vote.
What if what follows is noun-plus-verb? Here are five alternatives:
The Company desires that the Executive serve the Company as its chief executive officer.
It is the desire of the Company that the Executive serve the Company as its chief executive officer
The Company wishes for the Executive to serve the Company as its chief executive officer.
It is the wish of the Company that the Executive serve the Company as its chief executive officer
The Company wants the Executive to serve the Company as its chief executive officer.
Here too, I think want represents the simplest choice.
Incidentally, you could use wants and the alternatives in the body of the contract. But generally it’s a bad idea to key provisions to a party’s state of mind, as that could get you into the business of reading minds. For example, I’d revise the following example as shown:
At the written request of the Landlord, the Contractor shall furnish the Landlord with a copy of any one or more insurance policies
that the Landlord wants to renew[read: that the Landlord specifies].
Thanks to Martin and Mike for posting comments alerting me to this final point. It’s something that I’ll be exploring further.
I avoid motivation in the contract, whether in the lead-in or the body of the contract unless the motivation is somehow relevant.
For the lead: This agreement sets forth certain matters relating to the Company….
For the body: …Contractor shall immediately furnish Landlord with a true and complete copy of any insurance policy Landlord elects to renew.
If we are treating Contract Language as ‘computer code,’ then the motivational language is unnecessary. I prefer binary language, something is or is not occurring, and the language reflects that.
Also, would there be a concern that want/desire/wish language in the body may have unexpected consequences in the case of expressed motivation without intention to be bound. For example, a provision that says:
Contractor shall provide the Landlord with an estimate for the Yard Work 30 days prior to the Start Date for the Yard Work. If the Landlord wishes for the Yard Work to be completed as set forth in the estimate, then Landlord shall pay the amounts set forth in the estimate by the Start Date.
Contractor then calls up the Landlord and asks if the Landlord received the estimate. Landlord says, “I wish we could go through with the work, but it just isn’t in the budget.” Has Landlord just triggered its obligation to pay? It is a conditional acceptance and would be a silly fight, but I think we have all seen far sillier interpretations.
Martin: If you’re using recitals to state the background to a transaction, it’s standard to state succinctly what the parties have in mind. But you don’t want to go into detail, and you don’t want your statement of intent to conflict with the body of the contract. I don’t see how one can use recitals effectively with a blanket rule against statements of intent.
Your hypothetical doesn’t trouble me, as that wouldn’t be a suitable context for “wishes to.” That raises a broader question, though: when is it appropriate to use a statement of intent in the body of the contract? I’ll mull that over.Incidentally, I’m not sure what you mean by “the lead.” It doesn’t resemble what A Manual of Style for Contract Drafting calls “the lead-in.”Ken
I generally use “wish,” avoiding “desire” for the reason you explain. I’ve never used “want” because it seems a little too informal. Now I’ll reconsider.
For the insurance policy example from the body of the contract, I might go with something like “chooses to” or “intends to,” if it makes sense in context.
Now that I think about it a bit more, in the insurance policy example, I think I would adopt Martin’s approach and avoid mentioning the motivation. “Contractor shall immediately furnish Landlord a copy of any insurance policy that Landlord requests.” (Yes, I’d also drop “true and complete” as being inherent in “copy of any insurance policy,” but I wouldn’t argue if the other side wanted to put it in.)
Mike: Thanks to you, too, for alerting me to this issue. As I noted in my reply to Martin’s comment, I’ve revised the post to reflect it. Ken
Generally speaking, I dislike recitals. I like the idea of stating the purpose of the agreement, but somehow, they never sound quite right. Nevertheless, if you’re going to use them, why would you use these passive verbs “wish”, “desire”, or “want”? Instead, why not say “is” or “are”? Granted, this would presuppose the ultimate consummation of the deal – but isn’t that what you actually desire?
Jeff: If the contract is complex enough, or if the transaction builds on the prior relations of the parties, recitals are a great help to the reader. They might even be essential.
It’s difficult to discuss this without considering actual examples, but the recitals are for stating what the parties have in mind; the body of the contract is for establishing it.
Ken
Since I’m drafting recitals right now and wanted to look up this post, I’ll posit a case where recitals are extremely helpful: an amendment to an agreement that is not going to be amended and restated. Saying that the parties realized the agreement did not reflect the actual terms of their agreement adds a lot of help to someone interpreting it (and wondering why the whole deal seems changed). That statement as an acknowledgement or rep doesn’t really fit in with the amendment itself. I don’t need a party to acknowledge the reason — as long as they sign.
Another example: when a short agreement is related to a set of other agreements. Recitals put an agreement in context of the larger deal, particularly when it’s a standalone side letter that isn’t mentioned in the other deal documents, as often happens with side-lettery things….
Ken, being rather genteel and Victorian myself, I can’t help thinking of the traditional reproof to a demanding child who says “I want sweeties [US: candy]”. The conventional Victorian reply is: “I want doesn’t get”. The genteel, and more persuasive way of saying this would be “I would like some sweeties, please, mummy.”
I am also conscious that we need to avoid any ambiguity in context, as “wants” has an occasional, secondary meaning of “lacks” rather than “wishes”, as in the saying “waste not, want not”. This is not relevant to the examples that you give.
For these reasons, I am not quite convinced about “want” and will probably stick with “wish” until I see “want” becoming a more conventional usage. I share your dislike of “desire”.
I’m with Mark on this. “Want” really is too crass; it has a Gordon Gekko quality to it at which more genteel parts of the business world (and they do exist–a little sugar makes the pill go down better) might cringe.
However, there is yet another way around this. I had, not too long ago, a back-and-forth with a UK lawyer with whom I was drafting a consent-to-assignment letter. The UK lawyer had written “[company X] wishes to assign the contract to [company y].” I thought that was too, well, wishy-washy, so I proposed “intends” as the verb. That seemed direct, without brutality. The UK lawyer, however, demurred on grounds of delicacy, so we agreed to use “wish” in that case. However, in recitals, isn’t the purpose to describe the parties’ intent in entering into it? That being so, why not say so?
Vance: One risks overstating the nuances of both wish and want. As regards
want, there’s nothing crass or, heaven forbid, brutal about its use in everyday English, as in I want to go to the movies..
Your point about intends is interesting. I too have said that recitals are for expressing intent, so indeed, why not use intends?
It’s awkward in two ways: First, intends expresses a plan to perform an action at some point in the future; it suggests a time lag. And second, the implication is that the action would be under the speaker’s control, that timing considerations are all that prevent the action from being taken now.
By contrast, wish and want don’t connote either an interlude or control.
So I think that in the future I’ll refer to recitals as expressing purposes, not intent.
Ken
I think of the recitals as speaking to the world as it exists immediately before the agreement is made. Does “intend” imply a plan to do something later than the very next instant? Maybe. I’m not sure. In my mind, “want,” “intend,” “wish,” and “desire” are all so much better than the horrible “are desirous of” that I still see every now and then, I’m not inclined to get terribly upset about any of them. But if I have to pick one, I think I might be slowly drifting into Ken’s camp.
I agree that “desires” and “wishes” sound a bit gooey, but “wants” comes across as very blunt. Clients read this stuff, so I’m not sure if I would want to say “Party A wants Party B to do X, and Party B will do it on the terms set out herein”, as it all seems a bit grudging and sets the wrong tone between them. The recitals are largely presentational, and so I have no qualms about preferring style over function for them.
I think the phrase with the best tone might be “would like”, as in:
“The Company would like the Executive to serve the Company as its chief executive officer”.
In tone it seems to me to be neutral, polite but not overly-florid. But I’m sure it’s a matter of preference.
I agree that “desires” and “wishes” sound a bit gooey, but “wants” comes across as very blunt. Clients read this stuff, so I’m not sure if I would want to say “Party A wants Party B to do X, and Party B will do it on the terms set out herein”, as it all seems a bit grudging and sets the wrong tone between them. The recitals are largely presentational, and so I have no qualms about preferring style over function for them.
I think the phrase with the best tone might be “would like”, as in:
“The Company would like the Executive to serve the Company as its chief executive officer”.
In tone it seems to me to be neutral, polite but not overly-florid. But I’m sure it’s a matter of preference.
W: To my ear, would like sounds unduly discreet, given that contracts are strikly bidness.
To mitigate any brashness of want, you could have the parties collectively “want” whatever it is.
By the way, I’d never say in the recitals that a party “will do X on the terms set out in this agreement.” The body of the contract says whatever it says, and the lead-in says that the parties agree to what’s in the body of the contract. It’s redundant, and would disrupt the space-time continuum, to use the recitals to foreshadow the body of the contract in the manner you suggest.
Ken
I think “desire” or “wish” is preferable to “want”. To “want” something in the traditional sense is to need it and not have it — it has nothing to do with the mental state of desiring or wishing the thing that is wanted. Indeed, in this traditional sense, we desire many things we do not want for.
Mm: Garner’s Modern American Usage says, regarding want, “the usual sense, of course, is ‘something desired’ or ‘a desire.’” I think that’s clearly so. Ken