A Suboptimal Variant of Language of Performance

Every so often an issue arises in a topic that I haven’t had occasion to think about in a while. Here’s an instance of that.

Check out the following, caught fresh in the EDGAR lagoon (italics added):

Buyer is hereby purchasing from the Sellers, and the Sellers are hereby selling to Buyer, free and clear of all Encumbrances, all of the Shares …

By executing this Agreement, the Investor is hereby granting to the General Partner a special power of attorney …

The Vendors are hereby transferring, in their respective proportions, good and marketable title to the Sale Shares to the Purchasers in the proportions stipulated in this Agreement.

In each case, the drafter elected to use the present continuous instead of the simple present. That’s not ideal. The present continuous is used to express that something is happening now, at this very moment. But it’s not called the present continuous for nothing: it expresses that which is unfolding. That’s not what you want for language of performance. Instead, you want the action in question to occur instantaneously.

So use the simple present in language of performance, not the present continuous.

While I’m at it, see the introductory phrase in the second example, “By executing this Agreement”? It’s unnecessary, as that’s conveyed by hereby. And yes, I use hereby, as it has long served to flag language of performance.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

5 thoughts on “A Suboptimal Variant of Language of Performance”

  1. Speaking of things not thought about in a while, how about the interaction of the language of agreement in the lead-in, and language of other categories in the body?

    What I mean is, if every instance of language of agreement is weeded from the body of the contract as redundant of ‘the parties agree as follows’ in the lead-in, then isn’t the lead-in implicit in every subsequent provision?

    If so, that’s seemingly fine for things like ‘[The parties agree that] Acme shall pay Widgetco 4000 pounds for Blackacre,’ but logically awkward for things like ‘[The parties agree that] Widgetco asserts that each Widget is new and not rebuilt’ and ‘[The parties agree that] Acme acknowledges that Widgetco has never made Widgets before’.

    The unwelcome place this rumination leads me (but maybe not you) is to the conclusion that language of agreement is unnecessary and therefore unjustified anywhere in the contract.

    The lead-in is just a verbal boundary line around the deal, another way of saying ‘Here’s the deal’, no more substantive than the concluding clause, both deletable without harm.

    I could always be wrong, and often am. Is this one of those instances?

    • Yes, it’s exceedingly unlikely that omitting the lead-in would result in an otherwise enforceable contract being held unenforceable.

      But since the thing is called an agreement, it seems sensible to have the parties say that they’re agreeing to whatever it is. And it’s short, so deleting it would offer trivial economy.

      Both the lead-in and the concluding clause offer enough narrative value to earn their modest keep.

      • Two points:

        1/ What about the conceptual muddying that the lead-in does? Isn’t there a difference between (a) ‘The parties agree that Widgetco states that the Widgets are new’ and (b) ‘Widgetco states that the Widgets are new’?

        2/ Isn’t the concluding clause awkward and redundant if it follows a final body provision this way:

        Date of contract. When all parties have signed this agreement, it will become effective, and its date will be the date next to the signature of the last party to
        sign it.

        Each party is signing this agreement on the date next to that party’s signature.

  2. Ken:

    In consumer and small business contracts, I use “by signing this agreement” or the like instead of “hereby” when doing something other than imposing an obligation. It is nice to hear that you also view them as synonymous.



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