“To Wit” (And Submit Your Favorite Fatuous Archaisms)

During my public “Drafting Clearer Contracts” seminar in New York last Thursday, a participant mentioned the phrase to wit.

Here’s what Black’s Law Dictionary has to say about it:

to wit (too wit), adv. (14c) Archaic. That is to say; namely <the district attorney amended the complaint to include embezzlement, to wit, “stealing money that the company had entrusted to the accused”>. — Sometimes spelled to-wit; towit.

You can find plenty of examples on EDGAR of contracts that use to wit. Here are a couple:

Cash and/or Investments may be transferred into such account or accounts for specific purposes, to-wit:

… and only subject to the condition set forth in Section 7.4(a) of that agreement, to wit, that they are operated in their current locations (as of January 1, 2014) and branded with the current (as of January 1, 2014) financial institution branding.

Describing to wit as “archaic” is putting it mildly. Only an utter ninny would use to wit.

If you’re using to wit to express the meaning the following, then use that instead:

NOW, THEREFORE, the Trustees hereby declare that they will hold in trust all money and property contributed to the trust fund and will manage and dispose of the same for the benefit of the holders of Shares in the Trust and subject to the provisions hereof, to wit the following:

Here are examples that use both to wit and the following, redundantly:

Except as otherwise provided in this Agreement, in connection with any Reserve Expenditures, Permitted Renovations or Major Alterations of the Leased Property the following conditions shall be met, to wit:

Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the Board of Managers shall have the following powers, to wit:

Debtor shall be in default under this Agreement upon the happening of any of the following events, circumstances or conditions, towit:

Using to wit to express the meaning in other words is a bad idea, as you should say one way only whatever you want to say:

… which are at variance with the conditions specified in Exhibit D to this Agreement to wit the subsurface soil pressure is lower than 4,000 PSF

Finding out about to wit made me think that there might be other fatuous contract archaisms out there that I’m unaware of. I invite you to submit any that you think I might have missed. The obvious archaisms from the front and the back of the contact (witnesseth, in witness whereof, etc.) don’t count. Neither do Latinisms.

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.

8 thoughts on ““To Wit” (And Submit Your Favorite Fatuous Archaisms)”

  1. In defense of ‘to wit’, it’s brief.

    It’s also less clunky than ie, viz., namely, as follows, etc.

    Here’s the first example I found: ‘the prime cause of dissatisfaction at all times and in all countries, to wit, poverty’ — G.W. Johnson. I wouldn’t touch that.

    You may say that’s regular prose, not contract drafting, but what’s wrong with using regular prose in contract drafting? I thought that’s partly what you’re about.

    In addition, you’re beating a dead horse. According to Google Ngram, “to wit” peaked at 117 (never mind what) in 1820, dropped rapidy to 50, had a mini-resurgence in the early 1840s (to 80), and has been steadily dropping ever since to under 10 in 2000. Nil nisi bonum de morituris.

    In the end, I come out where you do. Only twits use ‘to wit’. But it’s a very small sin, much smaller than, say, using ‘single’ plus the superlative for rhetorical ballast, but that never occurs in contract drafting, Gott sei dank, as our ECB friends say.

    • I don’t think to wit qualifies as standard English, whatever economy it might seem to offer.

      And the extent to which it’s used or not used in the written corpus has little bearing on contracts, which are to archaisms as Neandertals are to the Iberian Peninsula: a place where they linger on after having died out elsewhere.

      • Sounds racist; not scholarly. To wit is a beautiful phrase current in every dictionary I selected. Many cultures now fight to preserve their language. Why would we unnecessarily kill off a good word from the English one.

      • “I don’t think to wit qualifies as standard English”

        What nonsense! “Standard English” doesn’t mean English you don’t like or that you want to exorcise from the language; it means words or expressions that are generally recognised as “non-standard”. Usages like “I don’t want none of them idiots coming to my funeral”. “To wit” might be obsolescent, or sound old-fashioned; that doesn’t mean it isn’t “standard English”.


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