“Regard Shall Be Had To”

Reader Estela Mora Alfonsín sent me the following request:

I am writing to ask if you could shed some light on the usage of the expression (apparently very frequent in legal writing) “regard shall be had”.

Honestly, I have not seen it in many contexts but one of my teachers at the translation course I am taking insists in us using it in both the active and the passive.

For example, we’ve translated the following sentence: ” se deberá utilizar el proceso de licitación más conveniente en función a los intereses de la Auditoría,” and we used this structure:

“The chosen tender process shall be the most suitable one regard being had to the best interest of the Audit Office.”

So of course I turned to the EDGAR system, The place where contracts go to die.® I saw that regard shall be had is indeed a thing. Here are some examples:

… and where there is material incremental cost involved in creating security over all assets owned by any of the Issuers or a Guarantor in a particular category (e.g. real estate), regard shall be had to the principle stated at paragraph 1.2(c) of this Exhibit E …

Where any obligation is qualified or phrased by reference to use reasonable endeavours, best efforts or wording of a similar nature, it means the efforts that a person desirous of achieving a result would use in similar circumstances to ensure that such result is achieved as expeditiously as possible and, regard shall be had, among other factors, to (i) the price, financial interest and other terms of the obligation; (ii) the degree of risk normally involved in achieving the expected result; (iii) the ability of an unrelated person to influence the performance of the obligation.

In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles.

In determining the rights of the US$ Note Trustee to additional remuneration following an Event of Default, regard shall be had to any amounts paid to the US$ Note Trustee following an event described in Clause 12.3(b).

Well, regard shall be had to (I think it appropriate to include the preposition) is dismal, what with the passive voice, shall that fails the has-a-duty test, and general bureaucratic awkwardness. I would use instead taking into account or some variation. In the case of the first, third, and fourth examples, that would require some retooling. I’m afraid that can’t be bothered to figure out how I would do it, simply because I know I wouldn’t have a problem expressing the intended meaning, whatever it is, without having recourse to regard shall be had to.

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.