In this post I discuss how archaisms such as witnesseth arose more than five hundred years ago. Why do they persist? Because transactions are a precedent-driven part of a conservative profession: when it’s time to do a new transaction, it makes sense to reach for contracts used in other, previous transactions. There’s also an element of incantation involved: the law has long been cloaked in ritual.
But we’re in a vastly more efficient age. We aim to get stuff done with a minimum of nonsense. That way, we save time, save money, are more competitive, and reduce our risk.
You’re a businessperson, or you’re an in-house lawyer. A lawyer (either someone at your company or outside counsel) gives you that draft contract you had asked for. They’re responsible for the wording—it’s not as if they had to work with the other side’s draft. The first thing in the draft that catches your eye is witnesseth.
By including witnesseth, here’s what that lawyer is saying:
Yes, I’ve included in this draft something that made sense five hundred years ago but long ago ceased making sense. It doesn’t affect deal terms in the slightest. Now it serves only to tell the world, “Here be bullshit legalese.”
Why did I include it? Force of habit, mostly. After all, I learned to draft by copying this dreadful stuff until it became second nature. Furthermore, like pretty much everyone else, I’m a victim of passive-drafting syndrome: all my contracts look like this, and changing it all would take way too much time.
At least that’s what I tell myself. Getting rid of witnesseth would in fact take no time at all. But that might waken my critical faculties. And who knows where that would lead.
You’re relying on me to know what I’m doing. The stakes are high. And I’m in effect telling you that I know what I’m doing, even though I’ve included that bit of fatuous crap in the contract, front-and-center. I’m asking you to ignore it, just as I ignored it while perpetuating it. But who are we kidding? I’m in fact a copy-and-paste monkey. Witnesseth is just the tip of the iceberg.
If your contracts matter and your lawyer serves up witnesseth, get your lawyer to change their ways. Or change your lawyer.