For some kinds of contracts—mostly where there’s a disparity of bargaining power—some companies prefer using the first person (we, us, our) to refer to themselves and the second person (you, your) to refer to the other guy.
Going that route has implications. For one thing, it wouldn’t make sense to use shall in such contracts. I wrote about that way back in 2006, in this post.
I now offer you another implication. How should you express language of performance in such contracts? Using hereby might strike an odd note. Today I saw an alternative—is pleased to. Here are some examples from EDGAR:
HARTE HANKS, INC. (the “Company”), is pleased to grant you, as an inducement material to your entry into employment with the Company, a stock option (the “Option”) to purchase all or any part of a number of shares of Stock (as defined below), subject to the terms and conditions set forth in this Non-Qualified Stock Option Agreement (this “Agreement”).
KeyBank is pleased to provide its commitment for the entire amount of the Facility (the “Commitment”).
In connection with the foregoing, (a)(i) each of Bank of America and Wells Fargo Bank is pleased to advise you of its several commitment to provide 60% and 40% of Tranche A of the Bridge Facility respectively,
KraneShares Trust (the “Trust”), on behalf of its various series portfolios (the “Funds”), is pleased to retain Quain Compliance Consulting, LLC (“QCC”) for the purposes of providing the services of Michael Quain (“Quain”) as the Chief Compliance Officer for the Funds, subject to the terms set forth below.
What say you?
By the way, if you’re appointing someone to something, I think it’s appropriate to have that person accept the appointment. If you’re in a no-hereby world, here’s what I’d do:
By signing this agreement, you accept that appointment.
6 thoughts on ““Is Pleased To””
Just trying some formulations:
1/ We are pleased to make, and you to accept, appointment of you as our Grand Vizier.
2a/ (Wordy version) By us signing this agreement, we [are pleased to] appoint you our Grand Vizier. By you signing this agreement, you [are pleased to] accept that appointment.
2b/ (Concise version) By this agreement, we [are pleased to] appoint you our Grand Vizier, and you [to] accept.
Matters other than appointments:
Preface each one with a definition like ‘”our”, “ours”, “us”, and “we” refer to Acme, Inc.’ (CDO is like OCD, only in alphabetical order.)
3/ We are pleased to grant you a stock option.
4/ We are pleased to provide our commitment for the entire amount.
5/ We [, each of Bank of America and Wells Fargo Bank,] are pleased to advise you of our several commitment. [Is advice ‘performance’?]
6/ We [, the Trust on behalf of the Funds,] are pleased to retain QQC to provide the services of Michael Quain.
(1) ‘Is pleased to’ seems equally usable in the first, second, and third persons;
(2) In a no-hereby world, ‘by this agreement’ is conciser than ‘by signing this agreement’.
(3) Since the function of ‘hereby’ in language of performance is to kill confusion between verbal act and recurrent conduct, ‘is pleased to’ seems to work nearly as well.
(4) ‘Hereby’ seems to signal language of performance equally well in first, second, and third persons.
(5) It’s not clear that the disciplined use of ‘shall’ doesn’t signal duty equally well in first, second, and third persons.
(6) Perhaps the worst problem with first-and-second person contracts is how to refer to both parties collectively (‘we’ and ‘our’ won’t do).
My neat yet rebarbative solution is to use the first person *singular* for one of the parties, the second person for the other party, and the first person *plural* for both parties collectively. Example: ‘If you and I cannot agree, we will arbitrate our dispute.’
(7) It’s interesting to make the consumer party the first person in first-and-second-person contracts: ‘If we do not timely pay you what we owe you, you may sue us’. Making the consumer the speaker gives the rhetorical illusion that the consumer is calling the shots.
Leave the expression of pleasure (or pain) out of the operative terms. Put it in an introductory sentence that stands apart from the terms themselves.
It it’s acting as language of performance, it says what it says, making where you put it irrelevant. And if it’s language of performance, it really belongs in the body of the contract.
But this formula is usually in letter agreements, which are often informally structured.
I see no reason to modify the “hereby” usage, especially with the cloying “are pleased to”–it has all the suspicious sincerity of the spider’s invitation to the fly. “We hereby appoint you, and you hereby accept” seems perfectly fine to me.
Note that in each of the examples, the entity pleasing itself is a company, not an individual. And it would certainly be presumptuous to extend the pleasure to the appointee. Double your pleasure, double your fun?
I suspect that all your examples are in the nature of recitals. Is there a single one where the language must have operative effect for the agreement to do what was intended?
Nope: the quoted language was all that there was by way of what’s-the-main-point-of-this-contract language of performance. At least that’s what I was looking for.