Why Are There So Many Weird Words in My Contract?

There is a group of words that have nearly vanished from the English language, yet continue to exist in legal contracts. There are a few reasons for this.  

First, lawyers generally are slow to change.  They tend to do things the way they were taught and rarely innovate – especially when it comes to drafting contracts.  Re-using old language is an easier and safer and less risky approach to building a legal agreement.

Second, it is extremely rare that a lawyer will ever draft a contract completely from scratch.  It is far more efficient for an attorney to use a previously drafted document as a starting point.  This benefits clients in that it saves the lawyer time (and presumably the client money).  Also, using another agreement as a starting point means the lawyer doesn’t have to come up with language on her own to capture certain potentially complicated legal concepts, because that work has already been done by whoever drafted the prior agreement.

Third, using verbiage that has appeared for centuries in legal contracts offers a measure of predictability.  Other lawyers and judges like to see words and phrases with which they are familiar when reading a contract.  Lawyers and clients like predictability when it comes to legal issues, so they tend to gravitate toward words that have been used many times before.

What words am I referring to exactly?  There are lots of them.  Here is a short list, along with some “plain English” definitions.  If you are trying to decipher a complicated legal agreement, hopefully this short guide will help.

Agree and covenant: Agree
Cancelled and set aside: Cancelled
Due and owing: Owing
Estoppel: Stop
Full and complete: Complete
Hereafter: After this
Hereby: By this
Herein: In this document
Hereto: To this
Heretofore: Before
Hereunder: Under this
Keep and maintain: Maintain
Legal and valid: Valid
Notwithstanding
Null and Void: Void
Part and parcel: Part
Sole and exclusive: Sole
Terms and conditions: Terms
Thereafter: After
Therein: In that
Thereto: To that
To have and to hold: To have
Way, shape or form: Way
Whereas: This is a meaningless term that can usually be removed
Witnesseth: Check this out

This list is somewhat tongue in cheek and I don’t mean to make light of using precise language in contracts, which is essential to a well-drafted document. Unfortunately, due to habit or laziness or a desire to seem smarter than their clients, lawyers often cling to unnecessarily confusing terms when a plain English substitute would be clearer.

Even after working with contract drafting and revision for over two decades now, my style and skills are still constantly evolving and improving. If you’re struggling with confusing contract language, hopefully this article can be a resource for you. If you still need help, please feel free to contact me!

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