Reader Gabriel Kurcab, a lawyer at the Cincinnati law firm Katz Teller, sent me the following traditional recital of consideration, which he had found in a medical director agreement:
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, accepting the above WHEREAS clause as true and incorporating same as if fully stated herein, that the parties hereto, in consideration of the premises and the mutual promises and undertakings herein well and truly to be formed, do agree as hereinafter set forth.
Freak-show traditional contract legalese gets old quickly, but it’s not a bad idea to remind oneself occasionally of what the worst of the worst looks like. Gabriel referred to this recital of consideration as “the human centipede of legal prose.” (If you don’t get that allusion, consider yourself fortunate!)
For my most recent discussion of the traditional recital of consideration, see this 2013 blog post. Because some think that the traditional recital of consideration has a role to play, in the fourth edition of MSCD I’ll attempt to put a stake through its heart.
(Go here for my post prompted by use of well and truly in this recital of consideration.)
4 thoughts on “A Recital of Consideration from Heck”
I have purged recitations of consideration from my contracts, but the more interesting vice — new to me — is the incorporation of the apparently single recital (‘the above WHEREAS clause’) into the bloated lead-in.
Wow. All those words, and it still ignores the 51% or so of the population who are women.
That truly is not well drafted.
But I disagree as to recitals of consideration in general. In my litigation practice, I often run across judges who may have heard that mutual promises, without any exchange of money, goods, or immediate performance, are consideration, but have forgotten it, or don’t believe it, or consider it a red flag for overreaching, fraud, or mutual mistake. Maybe there’s nothing to be done about that, but I always specify when drafting a contract that the parties ‘agree as follows, in consideration of the covenants and commitments set forth herein,’ or similar language. That way I at least have a strong issue for appeal that the trial judge ignored the plain language of the contract.
You have a terrific blog here, thanks.
Hey, like the moniker!
If I wanted to signal to a dimwit judge that a transaction is supported by consideration, I wouldn’t use anything like a traditional recital of consideration. And in my world, I’m afraid that words like “covenants” and “commitments” are verboten.
More generally, I don’t have the heart to draft contracts as if the concept of consideration were a great mystery.
For more on this, see https://www.adamsdrafting.com/the-recital-of-consideration-again/. I expect to revisit this once more, with feeling (and in greater detail), in the fourth edition of my book.