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...
According to Merriam-Webster, in its auxiliary function, “may” can express several things:
• wish or desire, particularly in prayer, imprecation, or benediction (“may the best man win”);
• purpose or expectation (“I laugh that I may not weep”);
• contingency (“he may be slow but he is thorough”);
• choice (“the angler may catch them with a dip net, or he may cast a large, bare treble hook”);
• may or must (“in law and contracts”).
While most of these uses are pretty straightforward, in contracts, “may” can sometimes be ambiguous and hard to translate. If unfamiliar with the multiple categories of language with which “may” is used in Common Law contracts, legal translators may mistranslate the term as if it always meant to express that something might come to pass (i.e. to express possibility, when what it is actually expressing is discretion).
If, like me, you work in a Spanish speaking Civil Law country with Common Law contracts, you may come across Hell or High Water as a clause, provision, obligation, contract, or covenant. For the purposes of this post, we’ll focus on Hell or High Water Clauses.
What is a Hell or High Water Clause?
Hell and High Water clauses are commonly found in leasing agreements and basically contain an independent and absolute contractual obligation of a party that is non-cancellable, unconditional and not subject to any right of set-off, rescission, counterclaim, off-set, reduction or recoupment during the non-cancellable term of the agreement.
For example, in an equipment lease, it may require the lessee to continue making rent payments to the lessor even if there are defects in the leased equipment. In leveraged lease transactions, it may obligate the lessee to make all rental payments with respect to the leased property, regardless of any...
Punitive damages (a.k.a. exemplary, vindictive or imaginary damages) is a problem term in some, but not all, language combinations. This is so because, legally speaking, punitive damages don’t exist in every country.
In my language combination (EN-ES), the concept of punitive damages exists linguistically, but not legally, throughout the Spanish speaking world. So, for example, while punitive damages have long been awarded by the Courts in Mexico, Venezuela, and Puerto Rico, it wasn’t until the new Civil Code was sanctioned in 2015 that punitive damages were explicitly addressed in Argentine law. So, for a long time, those of us who practice law in Argentina had a word for something that existed conceptually, but not legally. We talked about it. We theorized about it. But no court could award punitive damages because, technically speaking, they didn’t really “exist” under Argentine law.
Recently a student in my Comparative Law course contacted me with a...
There is a very common misconception that, other than pronunciation and spelling of some specific words, there aren’t really that many differences between the English spoken in the United States and that spoken in the U.K. There is another equally common misconception that because both the U.S. and the U.K. are Common Law countries, the law is pretty much the same on either side of the pond. Nothing could be further from the truth. And these misconceptions can result in dire mistranslations.
American Common Law is of course rooted in English Common Law, but the post-revolutionary split between England the United States meant that American Common Law and English Common Law evolved as two distinct systems within the same legal tradition.
We could write a book (or two) on the differences between English and American law today. Not only that, we could write a book (or a gazillion) on variations in legal terminology between the U.K. and the U.S., but this is a blog post and blog...