Yesterday I saw this cry for help on Twitter from @thepixellawyer:
— Chris Brown (@thepixellawyer) September 28, 2021
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.