The LexPublica Blog

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Last week in the office we were working on the intellectual property assignment contract. We won’t always be as hands-on with contract development, but for now, this is how we work when we’re the only ones involved in the process (by the way, want to help?): When Martin has a good working draft of a contract ready, he shares it with me and Zak as a Google Doc. We then add our comments and questions, and after further review and discussion eventually the contract is ready for release*.

In the IP Assignment draft, the following gem stopped me in my (admittedly sedentary) tracks:

“In consideration of $10.00 and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:”

I’m not a lawyer. I read the contracts and all the other documents we produce with a focus on questioning whether it will be readily understood by an average person. So here’s the comment I inserted into the draft:

“What on earth does this mean? Where’s the $10 come from? And do we have to call it a “covenant”? Also, does it have to be “good and valuable consideration”? It would be great to avoid any “hereby’s”, too.”

Over lunch on Friday, Martin explained to me where the $10 came from (there needs to be a clear element of “consideration,” which I get to next, and this amount is apparently less arbitrary- and valueless-seeming than $1). He also expounded on the “good and valuable consideration” bit – “consideration” being, in this context, the flow of something of value between parties and not just in one direction.

So for now, I’m appeased. But I’m certainly still thinking about direct, simple, clear ways to say things like this.

Now, “hereby”. I get what this word means (it means that nothing else needs to be done to accomplish the tasks outlined in the contract except to sign it). But I grabbed onto it as unnecessary legalese. I mean, it’s a word that’s in regular colloquial rotation, but not in a very meaningful way. Imagine a child donning a too-big crown and velvet cape, grabbing a broom handle as a scepter, standing on a dining-room chair and announcing, “I hereby declare I will no longer brush my teeth! It is official!”

I don’t think I’ve ever encountered “hereby” in actual conversation.

So what do you think? In the interest of writing our contracts if not in plain language then at least in straightforward language, should we stick with “hereby”? Or should we use a phrase like, “with my signature on this contract” or some such wording?

* All contracts are living documents under constant review and revision, so if you’d like to make a suggestion about the wording or content of a contract, or if you have a question, please leave a comment on the contract page.