On the real meaning of WITNESSETH

 

WITNESSETH is another common word that often gets lost in translation. As always, context is king. And today we're going to focus on the word WITNESSETH in the context of contract recitals.

Common Law contracts will usually have one of three kinds of recitals:

1) Context recitals: which describe the circumstances leading up to the contract.

2) Purpose recitals: which state what the parties intended to achieve with that contract.

3) Simultaneous transaction recitals: which tell us about the broader, relevant transactions that are taking place concurrently with the contract. 

Enter WITNESSETH (typically in bold, capital letters). While most legal translators believe that the word WITNESSETH indicates that someone is witnessing or stating that they have witnessed a relevant part of the execution of the contract, nothing could be further from the truth. 

According to Adams:

A traditional choice of heading is WITNESSETH. It's ludicrously archaic and is premised on the mistaken assumption that the word is a command in the imperative mood meaning roughly, one assumes, "Now, hear this!" In fact, it's the remnant of a longer phrase along the lines of This agreement witnesseth that..., with witnesseth meaning "is evidence."

Adams later goes on to explain that this heading could easily just read RECITALS or BACKGROUND because, in fact, the information it heads is precisely background information either about circumstances leading to the contract, the intention of the parties, or concurrent transactions. This, of course, significantly simplifies our jobs as legal translators.

For Spanish specifically, my preferred translation is either CONSIDERANDO or CONSIDERACIONES PRELIMINARES, depending on how your contract is structured. 

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