“Well and Truly”

Is there no end to the oddity of traditional contract legalese?

Today we consider well and truly, which I was happily unaware of until I considered the recital of consideration featured in this post. Its use of well and truly caused me to hit EDGAR, where I found the following examples:

This Agreement and each and all of the Obligations shall survive the execution and delivery of the Loan Documents and the consummation of the Loan and shall continue in full force and effect until the Indebtedness shall have been paid in full and each and every of the Obligations shall well and truly have been performed …

… if each and every one of the Obligations to be performed and discharged is well and truly performed in accordance with the terms of the Loan Documents and the North Loan Documents …

NOW, THEREFORE, the condition of this Mortgage is such that if Mortgagor shall well and truly pay and perform the Secured Obligations (as hereinafter defined) …

PROVIDED, HOWEVER, that if Issuer, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of and interest on the Senior Debentures due or to become due thereon …

Tenant agrees that it shall well and truly surrender and deliver up to Landlord the Demised Premises …

These were among 44 hits on EDGAR in the past year, meaning that well and truly isn’t common, but it isn’t an utter rarity either.

The phrase well and truly is idiomatic English. It means “completely”: We’re well and truly screwed. Why use a couplet like this? Because since the dawn of English, this sort of lexical coupling has served a rhetorical function. That’s something I discuss in this 2009 post. Another example that comes to mind is high and mighty. I could come up with many other examples.

Why does well and truly also feature in contracts? I suspect that it’s because well and truly has long played a role in oaths. For example, go here for Victorian oaths of allegiance; go here for an oath included in an 1803 work of Francis Bacon; and go here for the oath used by the North Carolina court system. I could go on. It’s not surprising that well and truly should have jumped the tracks and found its way into contracts too.

In contracts, well and truly is used to refer to performance of obligations. (The recital of consideration that started this inquiry refers to “the mutual promises and undertakings herein well and truly to be formed.” Presumably “formed” is a mistake for “performed.”) Because they involve an element of theater, rhetorical emphasis isn’t out of place in oaths. But it is out of place in contract language: saying Acme has well and truly performed its obligations instead of Acme has performed its obligations adds nothing other than redundancy.

By the way, I wouldn’t dream of offering a view as to whether well and truly migrated from idiom into law, or vice versa. I’ll leave that to the philologists.

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.