CONTRACTS: ARCANE VOCABULARY (1)

Study Unit CONTRACTS: ARCANE VOCABULARY (1)

ARCANE VOCABULARY IN CONTRACTS Arcane vocabulary means ‘words understood by few people’ or ‘mysterious words’. Some lawyers are fiercely protective of arcane words, perhaps because they feel that using them places lawyers in a small, elite and exclusive group. However, this is considered as old-fashioned thinking in the 21st century, and modern drafting advice is to delete arcane words from contract templates. Arcane words are not essential legal terminology but are just ‘general English’ words that can be replaced or deleted without changing the meaning of the agreement. Arcane words are usually also ‘archaic’, meaning no longer in common use in the language. Examples include ‘hereto’, ‘theretofore’ and ‘forthwith’. No one uses these words except lawyers and it is now considered extremely unhelpful to use this ancient English in a modern, cross- border contract. Many lawyers now regard using arcane words as the equivalent of paying in a shop by cheque or watching your favourite movie on video. In other words, these words seem to belong to a previous generation of lawyers and can be problematic for lawyers and clients who have decided to embrace progress. There are some examples of arcane words below.

(A) THE MEANING OF SOME COMMON ARCANE WORDS Hereby: means as a result of this document or by means of this document or statement Example: ‘The parties hereby agree as follows’ Meaning: By means of this document the parties agree to the following Herein: means in this contract; in this document Example: ‘Notwithstanding anything to the contrary contained herein’ Meaning: Despite anything to the contrary in this document Hereinabove: means earlier in this document Example: ‘Goods in the quantity hereinabove described’ Meaning: The quantity of goods stated earlier in this document Hereto: means to this contract; to this document Example: ‘The parties hereto have duly executed this agreement’ Meaning: The parties to this contract have signed it according to all legal requirements Heretofore: means before this time; before now Example: ‘All agreements, oral or written heretofore entered into between the parties’ Meaning: All oral or written agreements the parties have entered into before now Hereinafter: means later in this document Example: ‘RMC Ltd, hereinafter referred to as “the Supplier” ’ Meaning: After this point in this document RMC Ltd will be referred to as the Supplier Hereafter: means from now; from this point onwards; at some time in the future Example: ‘In the event that the Hirer should at any time hereafter fail to make payment’ Meaning: If the Hirer should at any time after now fail to make payment Hereof: means of this document Example: ‘As set out in paragraph 5.7 hereof ’ Meaning: As explained in paragraph 5.7 of this contract Hereunder: means under the authority of this document Example: ‘In the event that a party has breached any of its obligations hereunder’ Meaning: If one of the parties has breached its obligations under this contract Herewith: means with this document or with the other thing(s) I have sent to you Example: ‘I enclose herewith a copy of the invoice’ Meaning: I have enclosed with this letter/with these goods a copy of the invoice