When to Use “Hereby Appoints”

Well, I guess it’s language of performance’s turn in the spotlight, since this is my third post on the subject today.

Below is a sentence from EDGAR that uses language of performance to appoint an agent. It’s following by a version using language of obligation.

The Fund hereby appoints the Agent as its “Investor Servicing Agent” on the terms and conditions set forth herein.

The Agent shall act as the Fund’s “Investor Servicing Agent” in accordance with this agreement.

And here’s another such pair:

The Fund hereby appoints ALPS to provide administrative, bookkeeping and pricing services as are set forth in Appendix A, as amended from time to time, upon the terms and conditions hereinafter set forth.

ALPS shall in accordance with this agreement perform for the Fund the administrative, bookkeeping, and pricing services stated in appendix A.

I suggest that the versions using language of obligation convey the same meaning, and do so more simply. So I suggest that you use language of performance to appoint someone only if in that business context it’s standard to refer to appointment.

Can you suggest examples?

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.