The Weirdest Thing You’ll See Today: “Herein So Called”

Yesterday I saw this cry for help on Twitter from @thepixellawyer:

So I went on EDGAR. Westlaw offered me 1,196 contracts containing the phrase, so it’s a thing. On the other hand, it’s not commonplace—I’ve been hanging out in this neighborhood for 20 years, and I hadn’t seen it.

Here’s one EDGAR example:

I have no idea what purpose herein so called is intended to serve here.

Here’s a second example:

Again, what’s the point? It might be trying to highlight that what precedes it is a defined term, but we know that from the initial capitals. It adds to the confusion that this contract didn’t contain a definition of those two defined terms. That was the case in the few other contracts I looked at.

Here’s a third and final example:

Here’s, it’s in the middle of an autonomous definition. Again, I have no idea what function it serves.

This might be the oddest defined-term glitch I’ve ever seen. Perhaps it’s a mutated version of the pointless phrase used in defined-term parentheticals, hereinafter referred to as, transposed to a context where it doesn’t make sense. Beats me. Whatever the explanation, the phrase was presumably propagated by the copy-and-paste machine.

It’s weird, but it’s also in keeping with the systemic dysfunction of traditional contract drafting.

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.