Consider the phrase reasonable wear and tear, as in “The Grantor shall maintain the Equipment in good working order, reasonable wear and tear excepted.”
I know that reasonable wear and tear is standard, but it’s also a bit quaint: Wear is fine, but what’s with tear? Presumably the nifty rhyme has a lot to do with it. (Garner’s Dictionary of Legal Usage refers to it as a “reduplicative phrase.”)
Furthermore, the original phrase is in fact wear and tear, with a reasonableness standard built in. So in this context reasonable, normal, fair, and any other variants are redundant.
So what do you recommend? Stick with reasonable wear and tear? Just wear and tear? Just wear? Something else?
Great point, Ken. I’ve never questioned the phrase or really given it much thought despite the fact that I use it all the time. Next contract that includes the phrase I will seriously consider removing “and tear”…after running it through WestlawNext’s Texas cases of course.
In principle, “wear” refers to the gradual running down of a thing, or exhaustion of its capacity, while “tear” refers to actual premature breakage. The net effect on a party’s obligation, of course, is the same, so one might as well conflate the two concepts in the single word “wear.” However, I am sentimentally attached to the compound phrase, not for the rhyme, but in remembrance of 007’s defensive retort to an irate Q that “there’s a lot of wear and tear that goes on in the field, you know.”
007 is always reliable precedent!
Ken:
I think they are different things. Let’s take, as an example, the carpet in a B-class office building. Wear is the discolored area on which people walk most frequently. Tear is the gap where someone or somethign has pulled the carpet apart. Wear is gradual deterioration; tear is sudden deterioration. They both arise from ordinary use.
I think “reasonable” gets thrown in to differentiate wear (in particular) arising from unreasonable use. If you run an engine at top speed continuously, it will wear. This might be unreasonable, or it might not. But it is still wear.
I’ve seen it in so many leases that I think there must be caselaw giving guidance on what it could mean in the most frequent contexts. But maybe not. We lawyers always think that. And generalizations are always less true than we think.
Plus, it is nifty and the law has too many horrific sounding phrases. We need more nifty rhyming ones. Try rhyming “consequential.” Anything you rhyme it with is probably legalese, too.
In any case, I’d stick with “reasonable wear and tear.”
Chris
It’s a tiny bud of poetry in a landscape that (for reasons you’ve documented well) generally ought to remain sere. Argue about “reasonable” if you must, but let’s leave “wear and tear” alone.
Wear and tear, because (a) reasonableness is implied (I wouldn’t want to be the lawyer arguing that the phrase “wear and tear” covers unreasonable wear and tear), and (b) old clothes can be “worn” without being “torn,” so maybe “tear” adds something to “wear.”
If Bryan Garner is right, and “wear” and “tear” mean the same thing, then I’d opt for just “tear” as a matter of individual style, an important thing in contract drafting, wouldn’t you agree, Ken?
I think Garner is incorrect to suggest that wear and tear is an example of reduplication, if reduplication requires a rhyming but nonsensical element, as in hokey-pokey, razzle-dazzle,super-duper, and teenie-weenie.
As for “style,” life would be simpler if we all used the most efficient building blocks of contract language. And using those building blocks leaves all sorts of room for individual creativity. So by all means build your own castles, but build them using approved Lego blocks, please.