“Notwithstanding Anything Contained Herein”

A blog about financial agreements and language.

The Archaic Language Whereby Lawyers Draft

April 1, 2021, 2:44 p.m.

Featuring prominently among the more abstruse lawyering vocabulary are “R-pronouns” (e.g thereby, herein, wherefrom). Even when a normal human can figure out what is actually being said, thereafter it’s still quite a ways therefrom to what is being meant. Thereafter come linguists to the rescue. #contracts #legalese

So this one’s a bit on the lighter side.

One of the joys of my job is reading things lawyers write.  I often get to wonder what it’s like actually being a lawyer and having the superpower to think in their convoluted syntax.  But a prominent feature of the most terrible writing is the omnipresence of “R-pronouns”.  These are any combination of the words there, here, and where concatenated with a preposition like with, to, as, from etc.  Here is one of my favorite examples, since it seems to lose itself in them.

We expressly disclaim any obligation or undertaking to release any update or revision to any forward-looking statement contained herein or therein to reflect any change in our expectations with regard thereto or any change in events or conditions or circumstances on which any statement is based.

In form they range from certain almost intelligible examples like “thereto” (as in the Schedules attached thereto) to the completely arcane.  One can find an example of the exotic “therebefore” in this Cost Sharing Agreement on EDGAR:

However, such termination of the relevant administrative services or this Agreement shall have no impact on the rights or obligations of the two Parties occurred or generated according to this Agreement therebefore.

If I squint, I think I can get what therebefore is doing in that sentence, but I wouldn’t bet money on it - or even whether it’s actually doing anything at all.  My spellchecking program is marking up this entire section on every mention, steadfastly insisting it is not a word, and I am hard-pressed to disagree.  Just for fun, I plugged therebefore into Google’s Ngram Viewer.  Turns out, the highest frequency that therebefore ever had in English was in 1608, where it peaked at almost 0.0000140%.  I don’t mean to kick a word when it’s down but that’s less than coffee had in that same year - when there weren’t even any coffeehouses in England.

All of this begs the following questions...what are these things even doing in sensitive legal instruments on which depend many millions of dollars, when it’s not always clear what they are doing?  Ambiguity in a legal contract is always cause to sweat, if it’s not strategically managed.  Drafters might try to convince us that their use of R-pronouns is perfectly understandable to people who are “in-the-know”, and maybe they’re right, but that’s all the more reason to ask the following additional question: why are they even used, when English has much clearer alternatives?  

The answer to these questions is both simpler and more insipid than one might expect.  It’s easier to start with that they are actually doing.  R-pronouns are used whenever the object of a preposition is the neuter pronoun it or the interrogative pronoun what.  When it is, there is used in place of it and where in place of what, and concatenated with the preposition of interest.  It is of course acceptable (and if I may be so bold, better) to not use an R-pronoun, but where’s the fun in that? 

The why question is a tad trickier.  R-pronouns exist in English due to its Germanic heritage, although their persistence in colloquial or even formal English is generally limited to only a small number of them and only for certain highly restricted functions.  The where R-pronouns can often be used as complementizers, for example, since where introduces interrogative clauses.  Contemporary English speakers might recognize thereby or whereupon as fairly normal (We started our walk to the store whereupon it began to rain) but not, say, heretowards or therebetween (I can’t even think of a sentence where that would work, sorry).

This situation is quite different from other West Germanic languages, like Dutch and German, where these things are very much alive and active.  They don’t have the archaic or formal register for a modern English speaker.  German warum (English why), for example, literally translates to “where” (war) + “for” (um), a relative of English wherefore, which used to mean why, but now doesn’t really mean anything. 

The persistence of R-pronouns is likely due entirely to the existence of legalese as a sublanguage with its own vocabulary and conventions.  Legal documents, naturally being of importance, required lofty language that could easily set it apart and identify it as authoritative by its very unfamiliar sound.  Generations of legal minds became more aware of R-pronouns simply due to habituation, that is, due to encountering them in legal writing, where they are much more frequent than in colloquial English.  Perhaps a handful spot the pattern, internalize the use and meaning, and begin to use them productively, to the roaring cheers and admiration of other lawyers, and the utter confusion of the rest of us, thereby perpetuating their use.