While rooting around on Edgar, as is my wont, I came across the following:
You see it? Bang in the middle? “HABENDUM”!
I know I don’t get out much, but I’d never seen habendum before. Here’s what Black’s Law Dictionary has to say:
habendum clause (hə-ben-dəm) (1829) 1. The part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant. • The introductory words to the clause are ordinarily to have and to hold. — Also termed to-have-and-to-hold clause. 2. Oil & gas. The provision in an oil-and-gas lease defining how long the interest granted to the lessee will extend. • Modern oil-and-gas leases typically provide for a primary term — a fixed number of years during which the lessee has no obligation to develop the premises — and a secondary term (for “so long thereafter as oil and gas produced”) once development takes place. Most jurisdictions require production of paying quantities to keep the lease in effect. — Often shortened to habendum. — Also termed term clause.
As for how it’s used in contracts, here’s an example from an oil-and-gas lease:
ARTICLE I
CONVEYANCE
1.1 Grant. For and in consideration of TEN AND NO/100 DOLLARS ($10.00)] cash and other good and valuable consideration paid to WI Owner , the receipt and sufficiency of which are hereby acknowledged, WI Owner hereby GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, ASSIGNS, SETS OVER, AND DELIVERS unto Assignee an overriding royalty in the amount of an undivided two and one-half percent (2.5%) of 8/8 of all Overriding Royalty Hydrocarbons (as defined below) produced, saved, sold and marketed from or attributable to the Subject Interests (the “Overriding Royalty”).
1.2 Habendum. TO HAVE AND TO HOLD the Overriding Royalty unto Assignee , and Assignee ’s successors and assigns, as set forth herein.
Here’s an extract from a 2010 indenture:
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the Noteholders from time to time of the Notes, and for the uses and purposes and subject to the terms and provisions set forth in this Indenture.
And this is from a 2011 lease to units in Cambridge Science Park, in Cambridge, England:
The demise habendum and reddendum
In consideration of the several rents and covenants on the part of the Tenant herein reserved and contained the Landlord HEREBY DEMISES unto the Tenant ALL THOSE premises more particularly described in part 1 of Schedule 1 TOGETHER WITH (in common with the Landlord their lessees and assigns and all other persons from time to time having the like rights) the rights set out in part 2 of Schedule 1 EXCEPT AND RESERVING UNTO THE LANDLORD and its successors in title assigns and lessees and all persons from time to time authorised by it the interests rights reservations and exceptions more particularly set out in part 1 of Schedule 2 TO HOLD the Premises unto the Tenant SUBJECT to any or all easements and other rights (if any) now subsisting over or which may affect the same (including any such as are more particularly set out in part 2 of Schedule 2) from 6 March 2006 to 24 March 2006 and thereafter for the term of five years but determinable nevertheless as hereinafter provided YIELDING AND PAYING THEREFOR unto the Landlord during the Term by way of rent
Great—reddendum too!
I’m willing to have a laugh over witnesseth—it’s so obviously useless and utterly archaic. And it’s parked at the top of a set of recitals, so it’s soon out of the way. By contrast, habendum and the associated to have and to hold are aggressively obscure, and they’re in the heart of things. And where you see them, you’re assured of seeing a whole lot of other drivel.
I have zero experience with the kinds of contracts that feature this stuff, but I can say that whatever a habendum clause is meant to accomplish, the name habendum and the phrase to have and to hold are nonsense. They’re perpetuated by those milking, or in thrall to, a misbegotten system.
When you traffic in nonsense, you do nonsensical things. Like use habendum as the title for a set of recitals, as in the image at the top of this post.
Agreed, it is ridulous, but the context is that a few generations ago lawyers used Latin names for the various parts of a deed or agreement. From memory, testimonium is another. I also seem to recall people were exercised over whether the last bit used the phrase “in witness whereof” or “as witness the hand” – one for a deed, one for a contract under hand?
You’re being harsh, denouncing the use of ‘habendum’ as shorthand for a type of clause that used to begin with it. (I hold no brief for its misuse as for a synonym for ‘witnesseth’.)
Your ground of objection would ban ‘Gloria’ as the name of the Christian liturgical hymn beginning with ‘Gloria in excelsis Deo’ (‘Glory [be] to God in the highest’).
As well as ‘Sh’ma’ as the name of the great monotheistic proclamation ‘Hear, O Israel: the Lord is our God, the lord is One!’ (Sh’ma Yisra’el, YHVH ‘eloheinu, YHVH ‘eḥad.)
But if we nevertheless ban ‘habendum’ from contracts, the question is what English word or phrase to substitute.
The emphatic translation ‘to have and to hold’ makes for an awkward section heading (but see below). Maybe ‘Interest Granted’ would do, on the usual Ken Adams reasoning that the name of a thing ought to tell a bit about the thing, as in ‘No-Criticizing Provision’ or ‘Background’.
As for ‘to have and to hold’, consider the formula ‘I, ____, take you, ____, to be my lawfully wedded (husband/wife), to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part’.
It’s a brave man who announces publicly that his wedding vows are ‘drivel’.
Briefly on ‘witnesseth’: it’s part of the paradigm that the instrument is evidence of the agreement and not the agreement itself (the map, not the territory). ‘This instrument witnesses (is evidence of) the following. [Insert substance.] In witness (as evidence) that the parties mean to be bound by the foregoing, they are signing their names below’.
It’s a logical paradigm that has some advantages over the competing one by which the document itself constitutes the contract.
For example, if the document is destroyed, the ‘witnesseth’ paradigm says that one ‘witness’ (piece of evidence) of the (intangible) contract is gone, but the contract survives, its provisions to be proven by other evidence.
‘The document is the contract’ paradigm can’t express so concisely the state of affairs when the document is destroyed.
Change paradigms if the new one is overall better, but that doesn’t make the old one or its implementing terminology nonsensical.
In 1818, Lord Coke adumbrated eight parts for a deed to be valid: the premises, “habendum” (to have) , “tenendum” (to hold), “reddendum” (reservations), warranties, date, and the clauses of “incujus rei testimonium” (is that execution?) and “hiis testibus” (and witnesses?).
Perhaps the Latin phrases still have some use as a “naming of the parts”, but frankly I can’t see any need for any contract in 2018 to include the word “habendum” and more than it might “incujus rei testimonium”..
As the 2011 lease example demonstrates, real estate lawyers are much more inclined to stick closely to well worn turns of phrase. Their “contracts” can often last for several decades and it is not at all unusual to refer back to leases drafted 50 or more years ago when this sort of somewhat antiquated language was much more common, laboriously written or typed by hand. I suspect many would be reluctant to lose this sort of thing: “HEREBY DEMISES unto the Tenant ALL THOSE premises more particularly described … TOGETHER WITH … rights … EXCEPT AND RESERVING UNTO THE LANDLORD … rights reservations and exceptions … TO HOLD the Premises unto the Tenant SUBJECT to … easements and other rights … from [date] and thereafter for the term of five years but determinable … YIELDING AND PAYING THEREFOR unto the Landlord during the Term by way of rent …”
Redolent of Charles Dickens, isn’t it.
The last time I used the words “to have and to hold” was in reciting my wedding vow. As a lawyer, I probably should have realized that I was entering into an indenture.
:-)