As an experiment, a few weeks ago I searched on the SEC’s EDGAR system for a bizarre usage—I don’t remember what it was—that I thought I wouldn’t find anywhere. To my surprise, it had in fact been used in the past year, in a contract drafted in India.
I forgot about that until a reader pointed out to me a couple of days ago the Indian usage unless repugnant to the context. Here, from EDGAR, is a contract that employs that usage (emphasis added):
This BUSINESS TRANSFER AGREEMENT (this Agreement ) is made on this 29th day of August 2012:
BY AND AMONG:
ORCHID CHEMICALS & PHARMACEUTICALS LTD. , a company incorporated under the Act and having its registered office at Orchid Towers, 313 Valluvar Kottam High Road, Nungambakkam, Chennai 600034, India (hereinafter referred to as the Seller , which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and permitted assigns) of the FIRST PART;
…
This seems an odd usage, in that it’s a picturesque alternative to unless the context otherwise requires, which is itself bad news. (I wrote about unless the context otherwise requires in this 2007 post.)
Encountering these two Indian oddities in quick succession piqued my interest. Given that I might be going to India later this year, I thought it appropriate to investigate further. So I asked the reader who had told me about unless repugnant to the context what he thought about Indian contract drafting. Here’s what he said:
If you are coming to India, get ready for a lot of this …
NOW THIS MEMORANDUM WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Prediction: Indian lawyers will surrender these words only when you pry them from their cold, dead hands.
Seriously, Indian lawyers will tell you that these florid words are “protective” of their clients, and that judges who do not see these affectations will regard the drafter as bush league. Even after you expose this baroque language as having no legal effect they will still resist you. To attempt to take away the right to use these kinds of incantations will be perceived as an assault upon the legal professional’s position in society. It is unwise to generalize but my experience is that India is a profoundly hierarchical place where educated people are more concerned with titles and the accoutrements of power than perhaps anywhere else in the world.
I suggest perhaps intimating that to join the broader community of international lawyers the Indian bar must make a concession to modernity and adopt the new plain-English approach lest they be branded as slightly silly. If they conclude that putting on these formalistic airs may actually diminish them and reduce their cachet perhaps they will respond.
For my part, I don’t have anywhere near enough information to draw any conclusions. What do you think? And have any commentators written, for better or worse, about Indian contract language?
I’m not at all surprised by the advice you got. And it’s not just India: in many of the far-flung corners of the Commonwealth you see the same bias. Malaysia, for example, and places in the Caribbean, are positively Dickensian in their adherence to fusty ritualized formalisms.
With India, I think the best hope is the emergence of the outsourced lawyer. The folks who are asked to review, and sometimes negotiate, contracts by law firms and corporations in the US, might be persuaded that a more modern style would be an added value to their services.
Of course, that would require that their US employers have learned the benefits themselves, but a stealth methodology might turn the trick: you work with a receptive partner or general counsel who doesn’t have the fortitude to fight with his or her colleagues in the US, but then they can literally import the better methodology through their outsource.
Simple drafting remains elusive, however, not so much because anyone loses sleep over any attempt to simply the language, but because no one even makes the attempt. Formal English in India is of the standard that the Brits left behind. Indeed, I pick up many a syntax error and mixed metaphors in a lot of mail from even UK lawyers – their email is not cleaned up by support staff. Both the instances: “unless the context otherwise requires” and “unless repugnant to the context” are found in British era legislation, and private contract writers adopt it. I am not aware of those who fight to keep it. I do not see anyone trying to remove it. I do know however of those who fight about saying the American:
“NOW THEREFORE, in consideration of the premises and mutual agreements and covenants contained in this Agreement (the receipt and adequacy of which are hereby mutually acknowledged), each of the Parties hereto agree as follows:”
You will find EDGAR filings full of this. How I wish Indian lawyers do not pick up such stuff and simply start by saying: “The Parties agree as follows”
Yes, there’s certainly plenty of dysfunction in U.S. drafting!
This is the most fascinating topic I have ever seen on this frequently fascinating blog. It’s akin to the resistance a young associate gets from a firm’s old lions, when they insist that the way things have always been done is right because it’s the way things have always been done. But in the Indian context, the problem is writ large, inflated with class, culture, and colonialism. It will be a very interesting saga if Ken’s passage to India generates an ongoing dialogue.
Hey， Buddy India， Hong Kong beckons！
I am in China and came into Law/Contract English only recently. We, via Hong Kong, have exactly the same language:NOW THIS MEMORANDUM WITNESSETH AND…….