In the impeachment proceedings before the U.S. Senate yesterday, Chief Justice Roberts announced that Trump “be, and he is hereby, acquitted.”
BREAKING: Chief Justice John Roberts: "It is therefore ordered and adjudged that the said Donald John Trump be, and he is hereby, acquitted of the charges in said articles." https://t.co/cKgbkhVYFL pic.twitter.com/CSkOR6tJzI
— Evan McMurry (@evanmcmurry) February 5, 2020
I wrote about it in this 2007 post, in which I called it “the lamest drafting usage.” And I said this about it in chapter 20 (Drafting Corporate Resolutions) of the third edition of MSCD (I dropped that chapter from the fourth edition):
More often than not, drafters have a board of directors resolve that each officer of the corporation be, and hereby is, authorized. … This bizarre usage has resolve acting as both a factual and a suasive verb: be authorized is in the mandative subjunctive and is consistent with use of resolve as a suasive verb; is authorized is in the indicative and is consistent with use of resolve as a factual verb. This results in an inherent contradiction: if you are, by means of a performative resolution, conferring authority on someone, it makes no sense in that same resolution to use suasive language to convey an intention to authorize that person at some time in the future. You should use only performative resolutions to confer authority. Drafters also use this inappropriate dual structure with directing and ratifying performative resolutions, and the same analysis applies.
But MSCD doesn’t mention use in contracts of be and hereby is and its variants (be and is hereby, and be and it is hereby, and with or without commas and parentheses, and so on). Let’s look at that now.
First, you see it in provisions that appear copy-and-pasted from corporate resolutions. Use instead just language of performance, without having it be modified by intend, which doesn’t make sense. And you might as well use the active voice (added language in brackets; deletions in strikethrough):
WHEREAS, the parties hereto intend that the Merger (as defined herein) shall qualify as a “reorganization” within the meaning of Section 368(a) of the IRC (as defined herein) for federal income tax purposes and [the parties]
that this Agreement be and ishereby adopt ed[this agreement] as a “plan of reorganization” for purposes of Sections 354 and 361 of the IRC;
The semantics work, but I leave it to others to decide whether this arrangement makes sense substantively.
You also see be and hereby is in amendments. Here too, use just language of performance:
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto hereby agree that, subject to the satisfaction of the conditions set forth in Section 4.1, the Existing Credit Agreement (as defined herein)
shall be andhereby is amended and restated in its entirety as follows:
Section 1(c) of the Employment Agreement
be andhereby is deleted in its entirety and replaced in full by the following:
Sometimes you see it with language of performance that should in fact be language of discretion:
The Canadian Lender
shall be and it is hereby authorized to[may] act on behalf of Canadian Borrower upon and in compliance with instructions communicated to the Canadian Lender as provided herein if the Canadian Lender reasonably believes such instructions to be genuine.
It’s also used not to memorialize an action effective on signing the agreement but just to say the way things are. In other words, you should use instead language of policy:
The Company initially appoints the Trustee as Registrar and Paying Agent for the Debentures and the Corporate Trust Office of the Trustee
be and hereby is designated as[is] the Place of Payment where the Debentures may be presented or surrendered for payment, where the Debentures may be surrendered for registration of transfer or exchange and where notices and demand to or upon the Company in respect of the Debentures and the Indenture.
However, in the event that, notwithstanding the intent of the parties expressed herein, the Conveyances hereunder will be characterized as loans and not as sales and/or contributions, then (i) this Agreement also will be deemed to be
, and hereby is,a security agreement within the meaning of the UCC and other applicable law
Any and all Subordinated Debt
shall be and herebyis fully subordinated to the Loan.
So another dual verb structure bites the dust.