Of “Hereof and Thereof”: The Third Circuit Makes Stuff Up

Via Dave Hoffman (aka @HoffProf) I learned of this post by Matthew Stiegler (aka @CA3blog). It involves and and or, so you know it’s headache-inducing.

I won’t attempt to set the scene. Instead, let’s cut to the chase. Matthew’s post involves the Third Circuit’s recent decision in Sköld v. Galderma Labs. Here’s the court quoting the contract provision at issue:

The clause states that [the 2004 Agreement] “cancels and supersedes any and all prior negotiations, correspondence, understandings and agreements (including the [2002 Agreement]) whether oral or written, between the Parties respecting the subject matter hereof and thereof; provided that nothing in this Agreement shall replace, supercede [sic], cancel or modify any prior agreements or assignments between the Parties that have been filed with the United States Patent and Trademark Office.”

Here’s the court again (footnote and citation omitted):

Second, we reject Sköld’s interpretation of the phrase “hereof and thereof” in the 2004 Agreement’s integration clause to include all subject matter in either the 2004 Agreement or the 2002 Agreement. That phrase – “hereof and thereof” – includes only the subject matter shared between the two agreements. To interpret it otherwise, to include any subject matter in either agreement, would negate the difference between “hereof and thereof” and “hereof or thereof.” The conjunctive phrase includes only shared subject matter and the disjunctive phrase includes any subject matter.

First off, it was clumsy drafting to use “thereof” to refer to the 2002 Agreement: in the provision at issue the 2002 Agreement is just one constituent element of one of four plural nouns. But let’s give the drafter the benefit of the doubt and assume that “thereof” does in fact refer to the 2002 Agreement.

Now, on to the court’s argument. It’s mistaken. Nothing about “the subject matter hereof and thereof” suggests that what is being referred to is whatever is contained in the overlapping portion of two circles, one for the 2002 Agreement, the other for the 2004 Agreement (assuming that they even overlap). The meaning could equally well be expressed as “the subject matter hereof and the subject matter thereof,” and that phrasing precludes the court’s interpretation. For the court’s interpretation to be reasonable, the provision would have had to refer to “the shared subject matter hereof and thereof,” or some such.

Furthermore, I don’t share the court’s view that using or instead would have changed the meaning. Here are more colloquial equivalents of the language at issue:

  • The Yankees hereby cancel all remaining games, home and away, between the Yankees and the Red Sox.
  • The Yankees hereby cancel all remaining games, home or away, between the Yankees and the Red Sox.

I suggest that one would have a hard time arguing that they express different meanings.

The court would have done well to avoid this detour into and and or land, where courts tend to get swallowed in the quicksand of semantic confusion. Given the other evidence, it might have been unnecessary.

MSCD chapter 11, “Ambiguity of the Part Versus the Whole,” deals with and and or. It’s massively complicated. And thanks to the great Rodney Huddleston, co-author of The Cambridge Grammar of the English Language, it’s massively awesome. But we all should tread cautiously in and and or territory.

Bonus: Go here for my 2011 article about a previous Third Circuit or screw-up.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

3 thoughts on “Of “Hereof and Thereof”: The Third Circuit Makes Stuff Up”

  1. Ken:

    I lean more towards the court’s interpretation than yours as a matter of grammar. That’s partly because one of the normal problems we face is whether “a or b” means “either a or b or both” or “either a or b but not both.” The second alternative isn’t reasonable here. And that means that “the subject matter hereof or thereof” could mean “the subject matter hereof, thereof, or both” and couldn’t mean anything else. I think.

    And that somehow makes me more inclined to say that “a and b” must mean just the overlapping stuff.

    I agree that, in situations like this, courts should be more wiling to acknowledge that lawyers are not very good at drafting, and invite extrinsic evidence. And maybe courts should also take note of the fact that the grammatically best interpretation is sometimes nonsensical, and that should itself be evidence. That surely seems to be the case here.


    • Chris, you be on shaky ground. For one thing, the language at issue uses “hereof and thereof,” so that’s our starting point.

      I’ve given up arguing that courts should allow outside evidence. A pragmatic alternative would be for litigators to realize that they too know nothing and need outside experts.

  2. Ken:

    This first version cancels all the preceding stuff, overlapping or not:

    ‘This agreement cancels and supersedes everything prior to it respecting the subject matter of this agreement, but does not affect any agreements or assignments previously filed with the United States Patent and Trademark Office’.

    This second version cancels only the preceding stuff that overlaps:

    ‘This agreement cancels and supersedes anything before it respecting any subject matter common to this agreement and the 2002 agreement, but affects neither (1) any provision of the 2002 agreement respecting subject matter not common to this agreement and the 2002 agreement; nor (2) any agreements or assignments previously filed with the United States Patent and Trademark Office’.

    It’s ironic, or perhaps the word is counterintuitive, that the Third Circuit held that the ‘conjunctive’ interpretation made the 2004 agreement supersede less, while the ‘disjunctive’ interpretation made the 2004 agreement supersede more.

    The Third Circuit would have had to rule the other way if the parties had used an internal interpretive rule like the following:

    ‘”And” and “or” are conjunctive or disjunctive, whichever includes what the other would exclude’.

    That’s a wildly risky rule, though, unless the drafter is alert, cautious, and semantically acute.



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