With your indulgence, I’d like to talk grammar.
At the heart of A Manual of Style for Contract Drafting is what’s discussed in chapter 3—the different categories of contract language and the verb use that’s appropriate to each.
One such category is “language of performance,” which serves to memorialize actions of the parties that are contemporaneous with the signing of the contract. An example of language of performance is MSCD example [1-1]—Acme hereby grants the License to Smith. My first book, Legal Usage in Drafting Corporate Agreements, delves into grammar in greater detail than does MSCD, and in LUDCA I describe this kind of language of performance as a “ritual performative.” (You can find out more about LUDCA at the bottom of the MSCD page of this site.)
I’ve always been uneasy about one aspect of MSCD’s treatment of language of performance.
Here’s what I say in MSCD 3.13: “It is occasionally helpful to state that one or more parties are not taking a certain action, as in [1-3].” Here’s example [1-3]—The Buyer does not hereby assume the Excluded Liabilities.
I’ve always been half-hearted about the verb use reflected in [1-3]. While I was writing LUDCA I consulted a linguist from University College London. He categorically recommended the usage reflected in [1-3], so that’s what I went with, in both LUDCA and MSCD. But I’ve long thought that the more natural way to convey the same meaning would be to say The Buyer is not hereby assuming the Excluded Liabilities.
I’d now like to revisit this issue, and I invite anyone to post a comment suggesting which usage is preferable—[1-3] or my alternative—and why.
For a while now I’ve been working with Professor Alan S. Kaye of California State University, Fullerton (this fall our law review article will be unleashed on an unsuspecting world). Alan has suggested that he’ll alert the linguistics community to this gripping issue.