Yesterday I saw this cry for help on Twitter from @thepixellawyer:
@AdamsDrafting ever seen this? It's new to me. #strange pic.twitter.com/40Fw2LcND9
— 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.
4 thoughts on “The Weirdest Thing You’ll See Today: “Herein So Called””
To me this looks like a way of defining a self-explanatory defined term without simply repeating the term. For example: “This Letter Agreement (herein so called) …” is equivalent to “This Letter Agreement (“Letter Agreement”) …”
From there, it looks like it has been copy-pasted to other contexts where it doesn’t make sense.
It’s like putting “attached hereto and incorporated herein” after “Exhibit A”, or saying “the parties hereto” instead of just “the parties.” Nothing like a Chaucerian flourish to flog ye olde dead equine into submission.
Nah, it’s dumber than that!