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.
Sounds like a Briticism to me, a cousin of “for avoidance of doubt.” Your suggestion “taking into account” seems reasonable if one must use such a term. It all seems like a back-ended (I think that’s the polite term) way
of creating a prefatory reference.
It sounds to me like a phrase that a civil servant might use when taking the minutes of a meeting, designed to convey a vague “mood of the meeting” sentiment with deliberate imprecision. It is non-specific as to how much weight to give to the point that it qualifies or who should be doing so. It should be avoided in contracts, which generally should state clear obligations on a clearly identified actor, using the active voice. However, if that is the best translation of a similarly horrible expression in Spanish, I could not tell your correspondent to avoid it.
“Take into account” may work instead, if the intended meaning is in the middle of the range of possible meanings. “Based on” might sometimes be a more accurate rendition (harder tone) while “take into consideration” may be slightly softer in tone. In colloquial usage, I would prefer the phrase “bear in mind”.
ORIGINAL #1: ‘The chosen tender process shall be the most suitable one *regard being had to* the best interest of the Audit Office’.
EDIT (‘considering’): ‘The chosen tender process shall be the most suitable one *considering* the best interest of the Audit Office’.
REASONS: Brevity; eliminates passive. ‘For’ is breifer still, but implies a one-factor test.
ORIGINAL #2: ‘… 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 …’
EDIT (‘will apply’): ‘… 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), the principle stated at paragraph 1.2(c) of this Exhibit E *will apply*….’
REASONS: Brevity; eliminates passive.
ORIGINAL #3: ‘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.’
EDIT: (‘considering’) ‘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 *considering,* among other factors, (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.’
REASON: Brevity; eliminates passive.
COMMENT: Is that comma between ‘and’ and ‘regard’ really in the original? It makes no sense.
ORIGINAL #4: ‘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.’
EDIT: (‘will apply’) ‘In computing the majority when a poll is demanded, the number of votes to which each Member is entitled by the Articles *will apply*.’
REASONS: Brevity; eliminates passive.
ORIGINAL #5: ‘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).’
EDIT (‘will count’): ‘In determining the rights of the US$ Note Trustee to additional remuneration following an Event of Default, any amounts paid to the US$ Note Trustee following an event described in Clause 12.3(b) *will count*.’
REASONS: Brevity; eliminates passive, preserves vagueness.
General comments:
1/ Vague active-voice verbs like ‘count’ and ‘apply’ can often preserve the vagueness of passive constructions. Usually that’s a vice; under the discipline of this exercise, it’s a virtue.
2/ As usual, the examples cry out for major surgery, not lipstick.
3/ All employees must wash hands after touching things from the Great Manure Lagoon (c) Kenneth A. Adams..
4/ I can’t push the etymology of ‘regard’ earlier than 14th-century France. What’s the concept embedded in the root?
5/ It’s another exercise to tease out a by-agent in these examples. Eg, #1: ‘The one choosing the tender process shall choose the most suitable process, and in so doing, shall consider the best interest of the Audit Office’. That formulation assumes the by-agent is a party (hence ‘shall’ rather than ‘will’) and assumes the best interest of the Audit Office is a factor but not the only factor in choosing the most suitable tender process. If the best interest of the Audit Office is the only factor, we can toss out the concept of suitability and condense the provision as follows: ‘The tender process chosen will be the one in the best interest of the Audit Office’.
Thank you very much Ken! Very useful and comprehensive post, it help me figure out the usage of this expression. Thanks to everybody commenting. Your contributions have come in handy as well.
Regards