OK, kids, this is my most novel categories-of-contract-language post in a while.
Let’s start with hereby. Here’s what MSCD ¶ 3.35 says:
One helpful element of language of performance is hereby, which signals that the act described is being accomplished by the speech act itself. You could omit hereby, as in [1-1a], but this use of hereby is consistent with standard English. If you omit hereby from Doe hereby purchases the Shares, it would be clear from the context that the intended meaning isn’t that Doe is in the habit of purchasing certain shares. But in purely grammatical terms, one couldn’t exclude that meaning without using hereby. …
This alternative meaning is unlikely to create confusion, but it could distract readers. Eliminate the alternative meaning by using hereby.
That’s still good advice. But a couple of days ago I found myself working on a form of contract between a company and a low-level employee. It was in the form of a consumer contract, with you and we and no shalls. I had to add language of performance, to express an assignment of rights. I thought it might be a pity to inject into the mix the slight tang of archaism that comes with hereby, so here’s what I did instead:
You now assign …
Yep, now. In colloquial English it serves the same function as hereby in a performative utterance, as in I now pronounce you husband and wife.
Furthermore, it’s used in business contracts! Here are two examples from EDGAR, with the verb assign:
To the extent that any Catapult Foreground Intellectual Property is capable of prospective assignment, COLLABORATOR now assigns the Catapult Foreground Intellectual Property to Catapult …
In consideration of the purchase price specified below, WAA now assigns to ZROS all of its right, title and interest in the Patents and the License , including any rights to recover damages or other remedies in respect of all infringements of the Patents or the Licensed Patents , whether committed before or after the date of this Assignment.
And here are two more, with the verb grant:
In accordance with the foregoing, GCAL now grants to the Lender the assignments, charges, mortgages and other security described in the Debenture as being granted, created or made by Companies thereunder …
NOW, THEREFORE, the Grantor , for one dollar ($1.00), and other valuable consideration paid by the Grantee to the Grantor , the receipt of which is acknowledged, and subject to the terms, conditions and covenants contained in this on the part of the Grantee to be observed and performed, now grants to the Grantee a perpetual, non-exclusive easement over, under, through and across: …
I’m not suggesting that we jettison hereby for now in business contracts: the modest benefit wouldn’t be worth the disruption, as instances of hereby far outnumber instances of now. But how about for consumer contracts? What do you think?
14 thoughts on ““Now” in Language of Performance”
‘Now’ is chronological. ‘Acme now assigns’ could refer to something happening in another agreement. ‘Hereby’ is instrumental: ‘by means of these words Acme assigns’. They’re not synonyms and of the two, only ‘hereby’ does that job in performative utterances. One could unpack ‘hereby’ and say ‘by this agreement’, ‘by this section’, ‘by this provision’, ‘by this sentence’, etc., but the distinction remains between timing and method.
I’m sure the zillions married with “I now pronounce you …” will be mortified to hear that it was defective :-)
And one or two may be overjoyed. (I am now hereby kidding.)
I think Wright just put his finger on the problem with “now,” not in his principal argument but in his rejoinder. While it’s not grammatically incorrect to use the simple present, it isn’t colloquial either. Standard English would almost always opt for the progressive present “am now [verb root]ing.” I can see how that might not perfectly align with what you want to do, but it causes me to prefer “hereby” even if that registers as slightly formal. A contract is, after all, at least slightly formal.
I’m not suggesting we jettison hereby. As for Wright’s point, it’s perhaps pedantic: now has served this function in colloquial English since forever.
There’s a difference between an oral proclamation and a written declaration. “I now pronounce” works because the (purported) power is in the act of speech. A listener has no ambiguity about what speech-act is doing the work. And there’s no clear object for hereby to refer to.
But with a written declaration, the reader has no way to know what else might have been happening at the same time. This hereby eliminates potential confusion that now does not. And there’s a clear referent for hereby.
I think I’d prefer some version of “by signing this document” in the consumer context.
I don’t think anyone could reasonably pick a fight over this, particularly as the person picking the fight would be the party ostensibly taking the action: “It says ‘now grant,’ but I didn’t actually do anything, so I didn’t grant!”
But I think your oral-versus-written point is an important one. That’s probably enough to put the kibosh on this use of now in any context.
I think “now” and a verb could still be habitual, which was the concern for present-tense without hereby.
You might be right, but your verb (work out) isn’t a good example, as it’s not a performative verb. It’s harder to see a habitual meaning in, for example, I now declare this restaurant open!
In my defense, I don’t actually follow your advice on this one. I don’t use “hereby”, just the present tense. For the same reason: I think risk of confusing simple present for habitual present is tiny.
It’s not a question of confusion but of signaling. The English language has long found performatives helpful; I’m sticking with the English language!
I reply to your comment!
In my experience, “hereby” itself is confusing. Nonlawyers know it means something special. But they don’t know what special thing it means, and suspect it could be anything.
What performatives have regular use in everyday spoken English?
I’d have to consult The Cambridge Grammar of the English Language, which I can’t do right now.