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?