Note use of hereby enter into in the following Pleistocene-era lead-in: NOW THEREFORE, the parties hereby enter into this Agreement to set forth their mutual promises and understandings, and mutually acknowledge the receipt and sufficiency of valuable consideration in addition to the mutual promises, conditions and understandings set forth below. And note the same in the following concluding clause: IN … Read More
I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by … Read More
At one of my recent Toronto seminars, a participant mentioned something about how a trust cannot enter into a contract. So I followed up by asking Amy Morris Hess about this. She teaches at the University of Tennessee College of Law and is a prominent authority on trusts and estates. (She’s the successor author of the leading treatise in trust and … Read More
The party information you include in the introductory clause should serve to distinguish that party from anyone else bearing that name. But I’m acutely aware that what information you include can depend on the jurisdiction. This Tuesday, at my Tokyo “Drafting Clearer Contracts” seminar, I heard of another instance of that from Noboru Muranaka, a member of the legal staff … Read More
Reader Gabriel Kurcab, a lawyer at the Cincinnati law firm Katz Teller, sent me the following traditional recital of consideration, which he had found in a medical director agreement: NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, accepting the above WHEREAS clause as true and incorporating same as if fully stated herein, that the parties hereto, in consideration of the premises and the … Read More
Usually, where one or more parties happen to be on signing a contract should have no bearing on that contract. It might be relevant for purposes of determining the governing law, but only if you fail to include a governing-law provision. So a general matter, nothing is accomplished by stating—whether in the introductory clause, in the signature blocks, or elsewhere—where one or more signatories happen to … Read More
In MSCD and in this 2011 post I discuss using want in recitals instead of wish or desire. But how about intend? I hereby propose a distinction in how to use intend in recitals. First, don’t use intend for matters addressed in the contract. For that, stick with want or, if you prefer, desire or wish: intend isn’t a good fit. You … Read More
So, how long have I been doing this? About fourteen years? Well then, how come it has taken me this long to write about wherefore? Excuse me, WHEREFORE. There’s archaic, then there’s bizarro archaic. WHEREFORE falls into the latter category. One meaning of wherefore is “why,” as in “Wherefore art thou Romeo?” Another meaning is “as a result of which,” “therefore.” I’ve … Read More
1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101 (Tex. 2004) (PDF copy here), involved a dispute over an option contract to purchase real estate. The contract included the following recital of consideration: In consideration of the sum of Ten and No/100 ($10.00) Dollars (“Option Fee”) paid in cash by Developer, the receipt and sufficiency of which is hereby acknowledged and confessed, … Read More
Everything old is new again. Or something. Last week I noticed this post on ContractsProf Blog. It’s about a subject dear to my heart—the recital of consideration. So I rattled off a comment, without thinking too hard about it. Well, my comment prompted three vigorous responses, leading me to submit a second comment. Because my second comment might be of … Read More
