Hey, Canada! What’s Up with “Attorn”?

Yeah, yeah, attorn has an established legal meaning, although I’ve never had occasion to use it. From Garner’s Dictionary of Legal Usage, here’s the definition of the related noun:

attornment has two analogous senses, the first relating to personal property and the second relating to land. It may mean either (1) “an act by a bailee in possession of goods on behalf of one person acknowledging that he will hold the goods on behalf of someone else” … ; or (2) a person’s agreement to hold land as the tenant of someone other than the original landlord; a tenant’s act of recognizing that rent is to be paid to a different person. Both sense are used in BrE and AmE.

Here from the SEC’s EDGAR system is an example of use of attorn to convey that sense:

Tenant shall attorn to any party succeeding to Landlord’s interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, or otherwise, upon such party’s request, and shall execute such agreements confirming such attornment as such party may reasonably request.

But I’m interest in another use of attorn. Here are three examples from EDGAR:

The parties to this Agreement hereby attorn to the non-exclusive jurisdiction of the courts of the Province of Quebec.

Lender hereby irrevocably attorns to the non-exclusive jurisdiction of the courts of the Provinces of Ontario in respect if all matters arising out of this Power of Attorney.

The Consultant and the Corporation hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario.

Hmm, is there a pattern? Let me think … Gadzooks—they’re all from Canadian contracts! Of the couple of dozen contracts I looked at on EDGAR that use attorn in this manner, all were Canadian, apart from a couple of contracts that stated that Nevada courts had jurisdiction, with there being no sign of a Canadian connection.

So what gives, Canada. What’s wrong with hereby submits in jurisdiction provisions?

By the way, attorn is a deadly term of art. There has to be a clearer way of expressing even the meaning relating to possession of goods or real estate.

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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.