I think it’s time I said something about right, title, and interest, no?
You just know that right, title, and interest is a bit of inflated legal phrasing that serves only to make legal prose suitably sonorous. That the three elements are invariably kept in the same order is one sign that their function is incantatory and not substantive.
But let’s look more closely at right, title, and interest. Let’s start with the entry in Garner’s Dictionary of Legal Usage (3d ed. 2011), the only serious analysis I’ve found:
right, title, and interest. This phrase, one of the classic triplets of the legal idiom, is the traditional language for conveying a quitclaim interest. … Technically, only one of the three words is necessary, as the broad meaning of interest includes the others: though you can have an interest without having title and perhaps without a given right, you cannot have title or a right without having an interest.
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Still, some traditionalists prefer to keep from varying the age-old idiom, which uses only two additional words. Why, they reason, create a test case with their documents merely to find out whether interest is indeed broad enough to encapsulate right and title?
American lawyers, when given the choice in transactional drafting—the pros and cons on both sides of the argument—split about equally on the two sides.
I’m comfortable with Garner’s conclusion that interest encompasses right and title. For one thing, it’s easy enough to find caselaw to that effect. Here are a couple of random examples:
In common parlance the word ‘interest’ is broader and more comprehensive than the word ‘title,’ and its definition in a narrowed sense by lexicographers as any right in the nature of property less than title indicates that the terms are not considered synonymous. In re Baldwin’s Estate, 21 Cal. 2d 586, 591, 134 P.2d 259, 263 (1943).
In the context of property law, a “right” is a “legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act,” and an interest “generically … include[s] varying aggregates of rights, privileges, powers and immunities and distributively … mean[s] any one of them.” Dennison v. N. Dakota Dep’t of Human Servs., 2002 ND 39, ¶ 13, 640 N.W.2d 447, 453.
I can understand a practitioner deciding that there’s no point in being adventurous and tinkering with right, title, and interest. In cranking out deals, expediency is usually the order of the day. But it’s my job to figure out what works best.
Furthermore, the phrase might have its roots in conveying a quitclaim interest, but it can now be found in all sorts of contracts. So cumulatively, it has gotten annoying.
I haven’t worked much with real estate documents, so I’m not about to tell anyone what to do with right, title, and interest in a real-estate context. (Cousin Joshua, are you there?) But for purposes of corporate and commercial contracts, I say the heck with it. Use just interest or some variant, unless the context suggests that something else is in order.
Of course, things only get real once we’ve seen some examples from EDGAR. So here are three, chosen at random:
Seller desires to sell and Purchaser desires to purchase all of Seller’s right, title and interest in and to [read interest in] the Property …
Executive acknowledges and agrees that the Company is and shall be the exclusive owner of all rights, title and interest in and to [read all interests in] the Inventions …
“Copyrights” means, with respect to any Person, all of such Person’s right, title, and interest in and to [read interest] the following:
When you get rid of right, title, and interest, you also get rid of the annoying in and to. (I know that’s of particular interest to @copiesofcopies!)
But how does this play out internationally? How about under civil law?
‘I have CDO. It’s the same as OCD, but in alphabetical order, the way it should be’.
At the very least, tradition-bound drafters should say ‘interest, right, and title’, thereby preserving alphabetical order. ‘In and to’ is fine in that regard.
Oops, forgot my trigger warning: the foregoing was a joke.
At one level, I agree. Section 63 of UK Law of Property Act 1925 says all rights are transferred by a conveyance, so no need to recite long list of categories. But the list in section 63 – even longer than your triplet- indicates the range of possible categories.
Part of my concern is that English law over centuries has invented such a long list of different, non-intuitive, property interests, particularly in relation to land. Eg legal mortgage and equitable mortgage. They did my head in at university. Because it is non-intuitive I would worry about not using magic words in such an odd area of law.
Unfortunately this man-made jumble gets transposed into IP transactions because IP is a chose in action (!) or personal property depending on which statute you look at.
So I will probably stick with the safety blanket of right title and interest, as well as saying that the transfer is “absolute”.
Ps look at section 63 for “in, to or on”!
But what about “estate,” “claim,” and “demand”!
I don’t parrot the language of statutes. If there’s anything worse than traditional contract language, it’s the language of statutes.
Could the safety blanket be made conciser on site by having a definition in the definition section to the effect ‘”interest” means ‘right, title, and interest'”?
Why don’t we also say states means represents and warrants? And indemnify means indemnify and hold harmless? 0_o
In “Recipient assigns to the Inventor absolutely its entire right, title and interest in and in relation to any such intellectual property rights immediately upon their creation” does this “interest” include any/all financial benefits (I.e., any money gained)?
While “title” often gets thrown around as a synonym for “ownership”, I think that’s a narrowing of what the term normally means in common law contexts. Generally speaking, you hold title to an interest in a thing. So I could hold title to a fee simple estate in some land. Or I could hold title to a lease in the same land. Or I could hold title to a security interest in a copyright. In each case, title refers to something different from the interest itself.
The title/interest distinction matters for thinking clearly about co-ownership, since in that case multiple people will hold title to the same interest. It’s also necessary for thinking clearly about competing equitable claimants asserting competing titles to the same interest.
And the interest/right distinction matters because interests are real rights/rights in rem valid against the world, while a “right” could be a mere licence or some other non-property right.
Whether you need all three in a granting clause is a different matter, but I would caution against treating title/interest as synonymous, or title/ownership as synonymous.
Good day Michael, I came across your post after googling a very narrow question, which is: can you convey a good and marketable title simply by virtue of defining the interest conveyed as, for example using the words “an interest in 50 acres” as opposed “1 acre of the larger parcel or tract comprising 50 acres”. In other words, is using the word “interest” too vague of language in that scenario?
How does this work out in a service agreement context when you are conveying title and ownership of a Deliverable but retaining any rights, title and interest in and to any underlying intellectual property rights that might embodied in the Deliverable?