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.