Last night I saw the following tweet from @kemitchell:
@KonciseD Can I sub "now assigns" or "presently assigns" for "hereby assigns" to exclude the habitual? Matter how the K is dated? MSCD 3.20
— Kyle E. Mitchell (@kemitchell) April 27, 2015
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.
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.
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.
2 thoughts on “Two Language-of-Performance Variants”
Thanks again for responding at such length to my diminutive tweet. I’m especially grateful for your comment on “now” in correlation to spoken, rather than written, language of performance. Fun stuff!
It also begs the question, since we still seem only resigned to “hereby” for lack of a less lawyerly alternative, why we don’t just write “here assigns”. Since the date of the agreement (or its effective date) places the language of the agreement in time, all that’s left is to clarify the sense that “now” would not—that the language is the performance. Though I’ve only free EDGAR search tools at my disposal, I was able to find one example:
The concern about fixing the effect of the language in time, by the way, was the reason for my mentioning date of the contract on Twitter. I was concerned that if, say, the contract were dated based on signature dates or as of a later triggering event, then a license might enter the limbo between present assignment and executory contract obligation.
If you’ll permit me one rather indulgent, more general thought, the idea of a “special” word like “hereby” rings somewhat in a frustration I felt coming through in Goetz and Scott’sThe Limits of Expanded Choice: An Analysis of the Interactions Between Express and Implied Contract Terms, 73 California Law Review 261 (’85). At least as I understood them, the authors regret the lack of some special marker in contracts to distinguish what the parties would say to an interpreting court about what’s to be left in of statutory default rules, which isn’t always clear when using “magic words”, like warranty disclaimers, that walk a fine line between stating the substance and reproducing a sequence of letters in order for an anticipated, known effect. As a programmer, it reminds me a bit of the problem of choosing escape sequences. Wikipedia has a nice, short page:
On the off chance the article isn’t already far more familiar to you than to me, I do recommend it. It isn’t short, but I’m very glad I read it.
Hey, thank you for posing the question!
I don’t share your concern over hereby. Yes, it’s got a formal vibe about it. But it serves a useful function, and it’s standard English. And unless you’re doing it to replace serious dysfunction, inventing new usages is a losing proposition, as you’d be trying to teach really old dogs a new trick. You found one example of “here” on EDGAR? You can find pretty much anything on EDGAR. :-)
I don’t think your date issue is a real issue. The date of the contract is established either by a date in the introductory clause or the date the last party signs. That’s when hereby kicks in.
I’ll have a look at that article. I’ve found most of what Contracts faculty at law schools churn out to be irrelevant to what I do.