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 WITNESS HEREOF, the parties hereby enter into this Agreement and affix their signatures as of the date first above written.
The problem is that the hereby in language of performance means, in effect, “by means of this agreement.” So hereby enter into this agreement means “enter into this agreement by means of this agreement.”
Cue brains imploding.
I just say The parties therefore agree as follows. (Omit the therefore if you don’t have recitals.)
I agree “hereby enter into” is awkward and brain implosion inducing (maybe a bit recursive?). If I think about it long enough, the whole notion of the three words together is doubly redundant, what with the standalone problem of “enter into”. I have had a long struggle with those two words together — to me they sound redundant. Where else are you going except “into” it when you are entering something? Said another way, what purpose does “into” serve that is not already accomplished by “enter”? While these days I use “enter into” for the sake of convention, I did go through a phase where I was bold enough to simply say “the parties enter this Agreement.” I am searching for any basis upon which to reclaim or rekindle that boldness.
I feel your pain. I dimly recall trying the same thing (the parties enter this agreement) but abandoning it. The potential spoils aren’t worth fighting for.
A few comments:
1/ Regarding Evan Brown’s torment over ‘enter into’, I suggest eschewing both ‘enter’ and ‘enter into.’ Say the parties ‘agree’ or, ‘make this agreement’, the latter for contexts like full-form ‘time is of the essence’ provisions: ‘only reason the Vendor made this agreement’.
2/ To be fair to mossbacks, Ken is criticizing degenerate versions of the classic traditional lead-in and testimonium, which for all their objectionability had a certain logic and sense. In a most useful MSCD apendix, the ‘before’ version of the termination agreement that Ken annotates and fixes doesn’t use ‘hereby’. It says, ‘IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, all as of the date first written above’. Bad, but ‘hereby-free’.
3/ The real problem with ‘hereby’ is lexical ambiguity. Literally, it means ‘by this’. What’s ‘this’? This whole agreement? This article, paragraph, phrase, provision, section, sentence, subsection? Better to ditch all those compact “here-” and “there-” words and use their phrasal counterparts which, though longer, are clearer: ‘by this agreement’, ‘by this section 8 (b)’, etc.
I suggest that use of hereby in language of performance doesn’t pose the problem that afflicts other here- words.
Ken, I have to admit that as much as I hoped this new post would bring me around on “hereby”, I’m still adrift.
If “hereby” means “by means of this [written] agreement”, what does it add, apart from a whiff of archaic emphasis, to a present tense sentence on a page setting out contract terms? What can one write in the present tense in a list of terms that doesn’t speak to some effect, if at all, by means of that document when it is signed?
If the concern is that some other, related document might be doing the job of, say, assigning an interest in intellectual property, I think the point about the ambiguity of the “here-” in “hereby” is interesting. It cuts against your separate advice not to define “Agreement”, which would otherwise allow “X by this Agreement assigns…” with a clear distinction between the Agreement and other, related documents. Not that I’ve seen those definitions made or used with much precision. But well done, that approach could solve the problem.
Ideally, any statement about a separate performance document would be written as a clear declaration or condition. But our concern is whether a court might read present-tense language describing performance of a legal fiction as something less than present performance. If “hereby” gains us something there, why not also recommend “hereby states” or “hereby recommends”?
I do agree that “hereby” poses less risk as an ambiguous reference than other “here-” words, since its referent is a bigger target, harder to miss. But it isn’t any less stuffy sounding than those more error-prone terms. If the point is “this agreement”, why not “by this agreement” or just “here”?
I worry a bit about formal requirements for certain kinds of paper-based performance, like notarization. When the law requires we do something very specific on a certain sheet of paper, we have to comply. But I’m not aware of any requirement that specifically requires “hereby”; the requirement is usually satisfied elsewhere on the page, often with hokey stamps or descriptions of what is moving where. I know from my own practice that there is reason to worry about writing covenants to assign, rather than “present assignments”. But that’s a matter of courts reading language written as an obligation in the obvious way: as contract obligation, rather than performance.
With “hereby”, you seem to be implying that present tense, though natural for performance, isn’t enough.
I’d be very grateful for any life preserver you may find time to throw my way.
You’re aiming wildly with that there blunderbuss! :-) Use of hereby doesn’t change the fact that you’re using the presenter tense. And it doesn’t have anything to do with use of the defined term “Agreement”.
Instead, the idea is that without hereby, other meanings are possible. In particular, “Acme assigns” could mean that Acme is in the habit of assigning. That’s not a plausible meaning, but the reader has to process it nevertheless.
You could use here but that’s not a standard option, so it would likely cause more trouble than it’s worth.
Regarding why I don’t use it with verbs of speaking, see MSCD.
I would phrase it this way: the use of ‘hereby’ in language of performance is justified despite its ambiguity because
(1) all the possible meanings of ‘hereby’ in language of performance produce the same result, so the ambiguity is harmless, and
(2) ‘hereby’ in language of performance makes clear that the verb of performance (eg, ‘grants’) refers to a presently completed act rather than continuing or recurrent behavior.
‘By these words’ would do the same, but less concisely.
The ‘cost’ of ‘hereby’ — tolerating a harmless ambiguity — is less than the ‘benefit’ — concisely ending a worse ambiguity.
Another possible justification for ‘hereby’ is that Adams has redefined it to mean exclusively ‘here comes language of performance’, but that would require contract drafters and readers to know of MSCD’s
Except that there’s no ambiguity. For hereby to create ambiguity, “Acme hereby purchases the Shares” would have to leave readers wondering whether the shares are being purchased my means of entry into section X or entry into the contract as a whole. No such confusion exists.
This blog is very helpful as I have found it difficult to find others that also think about and argue with themselves the meaning of what some of these contracts are actually saying. It is refreshing. I am not sure if anyone else has seen this and I wondered if anyone felt it was worth redrafting but I have seen more recently: “Now hereby, the parties desirous…” I changed it because I tend to draft a little aggressively, I’m trying to still find that line but I thought I really wanted a stronger word then two parties wanting to desire something. Maybe I am overthinking it?!
In a closing: “By affixing two hands below…”which I thought was a little ridiculous and old fashioned so I redrafted it to the more typical old school closing. Thoughts?
When parties are dating their signatures, there should be no date in the introductory clause, but there should be a ‘date of agreement’ provision in the body along these lines: *When all parties have signed this agreement, it will become effective, and its date will be the date that applies to the signature of the last party to sign it.*
Then the concluding clause should be along these lines: *Each party is signing this agreement on the date applicable to that party’s signature.*
If the parties are not dating their signatures, the ‘date of agreement’ provision and concluding clause should both refer instead to the date in the introductory clause.
‘What is the sound of two hands affixing?’
Here’s what I use: “This agreement will become effective when all parties have signed it. The date of this agreement will be the date this agreement is signed by the last party to sign it, as indicated by the date associated with that Participant’s signature.”
And here’s my concluding clause: “Each Participant is signing this agreement on the date stated opposite that Participant’s signature.” (What’s up with “applicable to”?)
I would use “applicable to”. I don’t want to have to change standard language every time I cut and paste it (e.g., when a date line is below a signature rather than across from it). “Applicable to” is sufficiently clear to address a date that is across from a signature as well as a date that is below a signature.
‘Applicable to’ is a variant of ‘associated with’, both of which avoid having to specify location, like ‘under’, ‘next to’, ‘opposite’, and the like, for the reason you state, Uninterested Observer.
Ken, what’s with ‘Participant’? Are there nonparty participants and party participants, or is every signatory either a party or a participant? Are you thinking of parties with limited roles, or persons like witnesses and notaries who take part in, eg, contracts for the sale of real estate?
If there are nonparty participants, then your language would allow for a contract that becomes effective on *day one* but has *day two* as its date, because the last *party* signed on day one but the last *participant* didn’t sign till day two.
While we’re on the subject, Ken, is your aversion to the phrase ‘effective date’ based on the fact that the contract becomes effective at an point in time that is not a date, but fall within a date? –Wright
I’m relieved to report I’ve found no instances on EDGAR of the phrase “affixing two hands below.” If it’s not on EDGAR, I probably don’t have to worry about it.