Two Language-of-Performance Variants

Last night I saw the following tweet from @kemitchell:

Ah, variants on a category of contract language, namely language of performance!

Here’s the relevant bit of MSCD 3.20:

If you omit hereby from Doe hereby purchases the Shares, it would be clear from the context that the intended meaning isn’t that Doe is in the habit of purchasing certain shares. But in purely grammatical terms, one couldn’t exclude that meaning without using hereby.

“Now”

If you use now instead of hereby, you convey that the action in question is happening concurrently with the contract, but you arguably lose the sense that the action is cause by the speech act in question.

On the other hand, now serves a performative function in standard English (I now pronounce you man and wife). But I suggest that that use of now works best with oral speech.

So I’m comfortable sticking with hereby over now.

For what it’s worth, I searched for now assigns on EDGAR and found only one instance in the past three years. And it was particularly messed up: “The Managing Director here and now assigns to the Company …” By contrast, hereby assigns had 6,501 hits.

“Presently”

Using presently instead of hereby suffers the same shortcoming as using now, but it adds a big additional shortcoming: the different meanings of presently. Here’s what Garner’s Modern American Usage has to say:

presently contains an ambiguity. In the days of Shakespeare, it meant “immediately.” Soon its meaning evolved into “after a short time” (perhaps because people exaggerated their promptitude). This sense is still current. Then, chiefly in AmE, it took on the additional sense “at present; currently.” This use is poor, however, because it both causes the ambiguity and displaces a simpler word (now or, if more syllables are necessary, at present or currently).

And if that weren’t enough, the “poor” meaning of presently is generally used to convey status, not action.

So ixnay on using presently instead of hereby in language of performance.

For what it’s worth, I searched for presently assigns on EDGAR and found only 23 instances in the past three years.

Date of the Contract

As for the date of the contract, that has no bearing on language of performance—it’s a separate issue.

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.