“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.