I recommend saying Acme hereby grants the License to Smith, not Acme grants the License to Smith, with hereby omitted.
Why? I’ll let The Cambridge Grammar of the English Language 860 n.3 (2002) explain for me:
Clauses like I promise to return the key and I order you to leave are ambiguous, having also less salient interpretations in which they are statements about my habitual behaviour (“I habitually promise to return the key / order you to leave”): in this interpretation they are not performatives since they do not themselves constitute a promise or order.
Readers would never be confused by this ambiguity, but I don’t want them to have to eliminate the unintended meaning, even if they’re not aware that they’re doing so. So I use hereby to eliminate the unintended meaning. As CGEL notes, on page 1461, hereby essentially means “by virtue of this speech act.”
No comments yet? Okay, how’s this:
It seems to me that instances of language of agreement, declaration, discretion, obligation, and prohibition are all functionally speech acts, and therefore subsets of language of performance.
All such utterances carry out or constitute the action described, although the formulation can conceal that fact (‘Acme shall’ equals ‘Acme accepts the duty to’; ‘Acme may’ equals ‘Widgetco grants Acme the right to’).
So technically (hypertechnically?), the rule on ‘hereby’ might be phrased as, ‘Put “hereby” before instances of language of performance, except instances belonging to a subset described by another category of contract language’.
I suggest that your notions would cause the authors of The Cambridge Grammar of the English Language to scratch their heads. You’re making stuff up.
Let me try again, relying solely on MSCD’s definition of ‘language of performance’ as ‘[speech acts that] express actions accomplished by signing the contract’. 3.19.
Promises and grants surely fit that definition, yes?. Indeed, ‘Acme hereby grants’ is example [1-4] in 3.19.
‘Acme shall’ and ‘Acme shall not’ are promises otherwise worded, and ‘Widgetco may’ is clearly a grant of permission otherwise worded. I’m focusing on substance, not form.
Conclusion: obligation, prohibition, and discretion are subsets of performance in the MSCD system.
If that’s made up, it wasn’t by me. I just worked out a few implications of what MSCD says.
And, to be clear: I think the categories are sound even though some are subsets of another. No change in categories suggested.
Finally, I could be wrong, even if no one bothers to rebut the analysis.
What if it is not an action by a party but something in the contract, such as “the term is hereby extended to NEW DATE”? If that’s not a valid use of “hereby”, I may have some clients for you!
Using hereby in that context is fine, as it’s still language of performance, albeit in the passive voice. For an analogous context, see MSCD4 18.9.