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.
25 thoughts on “Hey, Canada! What’s Up with “Attorn”?”
In a 50-page commercial lease agreement between businesses, why is it so bad to say attorn in the normal sense? It is a fairly complicated legal concept reduced to a single word. That said, I think the example you cited actually misuses it. I thought it was only applicable where there is a change in the property’s ownership, though perhaps that’s just the only time it is important.
Assumng we wanted to replace it, what would we use? Something like this?
Tenant hereby consents to any transfer of ownership of the Property to any third party (the “New Owner”), including any transfer by way of sale, bankruptcy, foreclosure, or mortgage. Following any transfer, the New Owner may prospectively exercise all of the rights of the Lessor. Tenant shall confirm the substance of this section if Lessor asks Tenant for an attornment.
(The last sentence is there because i believe that banks generally require their own form of attornment to be signed before underwriting an office building loan.)
I think that this actually omits a lot of stuff that typically gets negotiated in a commercial lease. For example, the tenant usually wants to say that any attornment is conditioned on the new owner accepting the lease. And the lease should deal with whether the new owner can evict the tenant due to the failure to pay rent for periods before the transfer. And probably a hundred other things that a good commercial property lawyer would know about.
Chris: Trust you to focus on the more significant issue!
I don’t think attorn is a complicated notion reduced to a single word. Instead, it’s a funky word for consent that applies only in a limited context. Since the contract provision makes it clear what that context is, it’s unnecessary, and therefore counterproductive, to use the term of art attorn.
It follows that you don’t need to use attornment either. Instead, you can say “confirming that consent” or some such.
Not being a commercial property lawyer, I am unsure about this, but I don’t think attorn simply means consent. I think that there is a sense of binding oneself to one’s landlord. It derives from some feudal notion of not just consenting that your feudal lord has changed, but also swearing allegiance. Since we don’t hoist spears and longbows for our landlords any more, it is now more in the sense of holding property subject to the claims of the landlord. Sadly, along with the spears and longbows, we also appear to have also lost the sense of reciprocality, since attornment only favors the landlord, as far as I know. At least your feudal lord gave you a symbolic clod.
Chris: You might be getting a little metaphysical here. If you can’t articulate the concept in English, I suggest it isn’t worth preserving. Maybe what you need is a movie: torchlight, the gleam of armor, the kneeling vassal … Ken
But I did! See this sentence: “Following any transfer, the New Owner may prospectively exercise all of the rights of the Lessor.” That’s not a consent, but I understand it (perhaps wrongly) to be part of the concept of attornment.
You’re probably right about the movie, though.
I do not know about commercial leases, but I know about commercial sales and commercial securities, and in that context, attorn has a vital meaning, and is as relevant and as meaningful as the word security or sell. In the context of both, you often need a delivery, a transfer of possession. Now you could draft out this idea, so that you could say that “upon title passing to the buyer, the seller agrees that he will be holding the goods as agent for the buyer so that the buyer is to be treated as having taken delivery and the seller to have made delivery” or you could simply describe this as attorning. Similarly in situations involving possessory securities where the debtor retains custody of the collateral but not possession.
“Attorn” is not “a funky word for consent.” In the context of commercial real estate in the United States, “attorn” means “to acknowledge continuation of the existing lease under a new landlord under its previously existing terms and conditions”–or “to confirm privity of contract by agreeing to be bound as the tenant with a potential future owner, who will act as landlord, under the terms and conditions of the existing lease.
It does not mean consent. Consent to what? The tenant consenting to its landlord signing a mortgage, that might result, one day, in the lender foreclosing, and a new person owning the property? The tenant consenting to some future owner’s right to act as the landlord under the lease? These consents aren’t needed, and aren’t what is meant by “attorn.”
Attorn is a perfectly good word, with a precise meaning, with lots of caselaw interpreting it, lots of scholarly and non-scholarly articles written that discuss it in detail, and how “attornment” interacts with “subordination,” “non-disturbance,” and different laws in different states that say different things about the effect of foreclosure upon an existing lease (and lots of related issues).
Why in the world would we want to give up a perfectly good and useful word?
Paul: Use of attorn in scholarly articles has no bearing on its use in contracts.
You’d do me a favor by considering the contract extract I included in the post and explaining to me why using consent instead of attorn wouldn’t work. If it doesn’t work, what verbiage would you need to add to the provision to make it work?
Within the EU parties can “agree” to a jurisdiction (eg in a contract) and thereby avoid the general rules of the Brussels Regulations – see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2001R0044:20100514:EN:PDF
Otherwise, my impression (but without being able to find authority on a quick look) is that international treaties on conflicts of laws refer to “submitting” to a jurisdiction, and this is an expression that I have seen in international contracts. Attorning to a jurisdiction seems like a lawyerly way of saying submitting, but perhaps there is some Canadian statute that uses the term attorn?
“Attorn” is a frequently used and commonly understood term among real estate lawyers. In fact, the word “attornment” is part of the title of a rudimentary agreement, commonplace among a landlord, his lender, and his tenant. “To attorn,” when the subject of this verb is a tenant, means to acknowledge continuation of the existing lease
under a new landlord under its previously existing terms and conditions.
(See 51C C.J.S., Landlord & Tenant, § 22, pp. 55-56.)
Is the goal is to rid the legal profession of any word that would cause the average eighth grader to pause and say “what does that mean?”
Paul: Perhaps I don’t get out much, but I’d never encountered attorn previously. And obviously plenty of Canadian drafters think it means something other than what you say it means.
The point isn’t to dumb things down. The point is to get rid of unnecessary terms of art that create confusion. Judges and scholars might find that attorn and attornment come in handy, as they have to put concepts in a broader framework. But if you’re looking for a verb to express the notion of consent in a contract, it’s pointless to use consent in one place and attorn in another. Anyone who, like me, was oblivious to attorn wouldn’t notice its absence, and those who use attorn would have to acknowledge that you don’t need a dollar word to express a nickel’s worth of meaning.
So does it have both the senses of:
1. consenting to the transfer of the property (i.e. as not violating the tenant’s possessory interest); and
2. agreeing to remain bound by the lease as if the new owner were substituted for the old?
Presumably, a tenant need not acknowledge the fact of the transfer of ownership, since this is simply a legal fact regardless.
In an attornment, is there an automatic element flowing back from the new owner to the tenant? Or does that have to be drafted in?
As a Canadian commercial lawyer, I have seen these “attornment” clauses many times, but have never questioned the meaning of “attorn”. But now, I am really curious to know why (appararently only) Canadian contracts are written this way.
Have you found an answer yet????
Attornment as used in the examples you have cited means to agree to a forum where any disputes between the parties will be heard. Note that this is technically different from agreeing what law will be applied. For example, the parties could attorn to the jurisdiction of the Province of Ontario, but the law of another jurisdiction could be applied when mediating the dispute. I was not aware that this term was unique to Canada, but as a Canadian contract lawyer it has never caused me any confusion.
Brendan: Thank you. I think most readers would understand that we’re dealing here with jurisdiction rather than governing law. But the meaning conveyed is “consents” or “submits,” and in other jurisdictions one or other of those words is used. Why use a fusty word like attorn? In particular, this use of the word appears to bear no relation to how it has traditionally been used. Ken
I guess I would only say that the use of the word in Canadian contracts is traditional. I can see how it could cause confusion to someone from another jurisdiction, but when you are exposed to it regularly in this context, with this meaning, it does not strike me as fusty. I am generally a strong supporter of your movement to use regular language in contracts – but the word “attorn” only had one primary meaning for me until I read your article. For me, substituting “consent” or “submit” in its place would not make the contract easier to understand. But knowing that it does not carry the same meaning in the U.S. is a reason to consider alternative language when dealing with international parties.
I have no expectation that attorn will disappear from the scene. Instead, I’m suggesting that individual drafters would make their contracts more readable by (1) not using a word that, to anyone but the initiated, is utterly obscure and (2) using instead a word, consents, that is used both in everyday English and in contracts to convey exactly the same meaning that attorns evidently seeks to convey in this context. It’s a no-brainer. How judges or scholars happen to use the word is irrelevant for purposes of conveying meaning in contracts.
One of the great things about contract drafting is that you don’t have to move with the herd. You can simply do whatever is clearest.
Readable contracts is one goal of contracts. The ultimate end purpose of a contract is to go to the courts to seek enforcement of the written agreed upon terms if the other party does not voluntarily follow those terms. As much as you or I may believe that other language is better and more readable, if actual legislation and court decisions (from the same courts that would be interpreting our contract) use a particular word I doubt most clients/parties would be interested in being “right” in their drafting if that means swimming upstream against a usage common in legislation and courts of the land where the parties are seeking to enforce the contract that uses the term. You cannot simply ignore validly enacted Canadian legislation and court decisions (which clearly endorse the term and understand its meaning) because they don’t follow good logical drafting. There are numerous examples of legislated uses of words that do not match their normal English language meaning (for example “perfection” and “attachment” in UCC 9 /PPSA legislation). In my experience, most clients want to follow the route of least resistance and don’t want to be a “test case”.
I haven’t done the research to conclude for sure that “attorn” in this context has reached the level of being a term of art in Canada but the number of occurrences in cases and statutes would definitely give me pause to immediately dismiss the term.
It is very possible that Canadian courts would not be confused and would provide equal interpretation to a phrase “consents to the jurisdiction” but I am not in a position to reach that conclusion. If that conclusion can be reached then there would be no question that the “consents” language would be preferred over “attorn” language.
Of course, IF this is a unique Canadian English legal term not used elsewhere, then one clear cautionary lesson for Canadian parties/drafters is that the “attorn” concept would be very dangerous to use in contracts where the court that is the intended audience is outside Canada. For example, it sounds like it would be a really bad idea for a contract drafted in Canada to “attorn” to the courts of New York because the courts of New York apparently would not be used to seeing this word used like this and conceivably could misinterpret its intended meaning.
The fact that court opinions and statutes happen to use a given term isn’t reason enough to parrot it. That way lies the canard that you can’t change “tested” contract language.
For example, just because Delaware statutes use the phrase “books and records” doesn’t mean I’m going to use it in contracts.
I’m not against complexity, just needless complexity. If a term of art doesn’t have a clearer analogue in regular English, then you stick with it. You also stick with traditional terminology in those limited circumstances where a court has made it clear that that’s what you have to use. And if change would freak everyone out, then you go with the traditional, if it’s just clunky but otherwise benign.
If Canadian courts can’t cope with “consent,” that would mean that they can’t process language, and everyone should pack up and go home.
Sure, it would be bizarre to use “attorn” in this context in a contract governed by New York law. But it wouldn’t create any drama, just as using “consents” wouldn’t create any drama. The intended meaning is easy enough to decipher. I just don’t think anything is gained by requiring readers to do the deciphering.
This might make me sound like a raging anarchist, but my first rule is not to be a purist: I want to avoid fights, not win them. And getting rid of “attorn” would give me no pause.
Having spent too long rummaging around on the internet, my impression is that using “attorn” in the context of contract jurisdiction is limited to Canada. (Looking at the 50+ volume English work, the Encyclopedia of Forms and Precedents, the terms “attorn” and “attornment” seem to be focused on one template agreement and to be used in the context of an obscure issue about security over / bailment of goods.)
To thrown a spanner into the works, how about this quote from a legal blog, discussing Canadian case law:
“Attornment constitutes consent to the receiving jurisdiction by a
positive act. In most Canadian provinces, this is triggered by a
defendant delivering a Notice of Intent to Defend or Statement of
Defence. Consent-based jurisdiction will also be found where the parties
have contractually agreed to have any disputes adjudicated in a
specific forum through an enforceable forum-selection or arbitration
If this quote is correct, it seems inappropriate to use the term attorn in a jurisdiction clause in a contract, even in Canada.
Thanks for this information; I found it helpful.
Mark: Thanks for this information; I found it helpful. Ken