Contracts as Incantation

Here’s one of today’s tweets:

It wasn’t entirely inane. A symptom of legalistic jargon is if, in the case of a usage with two or more components, those components are fixed in a certain order.

So the phrase is always acts of God, with the pious capital G, and never God’s acts. And on EDGAR, contracts using the phrase represents and warrants outnumber around 30:1 those using warrants and represents. I could offer plenty of other examples.

Sticking with a given order is a sign that we’re dealing not with meaning, but with incantation. Magic spells.

Consider those two usages. What, pray, does acts of God mean? Can you say with any certainty? In fact, the inevitable force majeure list of all the bad things—the parade of horribles, of which acts of God is just one component—is unhelpful. See this 2020 blog post for more about that.

And the phrase represents and warrants is dumb. See my 2015 article for a definitive explanation. The best you can say for it is that it’s silly instead of pernicious, except when it’s pernicious. (See this 2019 blog post for more about that.) So I understand your continuing to use represents and warrants because you don’t want to rock the boat, or because you’re oblivious. But if you’re aware of my work and you continue to think represents and warrants is the best way to introduce statements of fact, you have some soul-searching to do.

When we employ that which has no useful meaning, we chant it. We prize the nebulous fake meaning we attribute to it, not the actual meaning. As a result, we don’t disassemble usages and consider the individual components.

It would be best to rid contracts of mumbo-jumbo.

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.

1 thought on “Contracts as Incantation”

  1. Ken:

    There’s a certain power to the incantation theory of contracts. Contracts are compilations of speech act. Completing them properly by including the magic component of “consideration” makes mere speech into legal bonds.



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