Verbs That Don’t Work in Language of Performance

Consider use of the verb pay in the following extract from EDGAR:

In consideration for the conveyance of the Assets to Buyer, Buyer hereby pays to Seller consideration (the “Purchase Price”) …

You can’t pay someone just by saying so. As linguists would say, pay cannot be used performatively. In other words, pay doesn’t work in language of performance.

Way more verbs cannot be used performatively than can: clean, eat, drive, and so on. But it’s rare that you encounter a nonperformative verb used in language of performance. In fact, the above example is the only one I can think of at the moment.

Can you think of any others?

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.

7 thoughts on “Verbs That Don’t Work in Language of Performance”

  1. I respectfully wonder whether payment cannot be a speech act, a thing accomplished by the saying of it.

    If I say to a bartender after delivering a sum to her, ‘Keep the change’, those words transform the excess over the price of the pint from some sort of bailment into a gratuity.

    Or in the terms of the EDGAR example, can the Seller that signed the contract with those words in it thereafter deny payment?

    In the same way, I wonder whether the following verbs may not also refer to speech acts: accept, acknowledge, agree, confer, contract, demand, grant, give, offer, promise, purchase, ratify, represent, sell, state, tender, and warrant.

    The (perhaps wrong) test I am using is the ‘walkaway’ test: can the declarant deny the deed?

    Example: ‘Oh, ha, ha, perhaps I *said* in the contract that I granted title to the Widgets to Acme, but I didn’t *really* grant title to the Widgets to Acme’.

    Doesn’t work. The saying was the doing, so the grant was a performative, no?

    As for the specific example from the great manure lagoon — In consideration for the conveyance of the Assets to Buyer, Buyer hereby pays to Seller consideration (the “Purchase Price”) … — I think it means, upacked concept by concept, the same as the following:

    ‘The Seller hereby conveys to the Buyer, and the Buyer accepts from the Seller, title to the Assets. The Buyer hereby conveys to the Seller, and the Seller accepts from the Buyer, title to the Purchase Price’.

    The words make the transaction happen, not the physical location, movement, or possession of objects. So they’re speech acts. At least, that’s how it looks to me.


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