Thursday, April 28, 2011

Meanwhile, in real estate law ...

We're going over construction loans in class yesterday. Basically, a lender gives you money for the project as  you complete each phase of construction. So, for example, you get enough money to build the foundation. Once the foundation is completed and inspected, you get more money to frame the building. There are quite a few nuances to the practice, but, basically, that's it.
Clear enough. Until you take a look at a sample contract.


Can't you imagine Daffy Duck reading this contract?
According to Why the King James Bible Endures, words that ended in -eth were outdated at the time of the King James and were used bring formality and aloofness to the prose. More than a half-millennium later, words ending in -eth would be funny if they didn't get in the way of understanding what the heck you just signed.
Black's Law Dictionary, the standard reference for this kind of thing, says,
WITNESSETH

witnesseth, vb. Shows; records. • This term, usu. set in all capitals, commonly separates the preliminaries in a contract, up through the recitals, from the contractual terms themselves. Modern drafters increasingly avoid it as an antiquated relic. Traditionally, the subject of this verb was This Agreement: the sentence, boiled down, was This Agreement witnesseth [i.e., shows or records] that, whereas [the parties have agreed to contract with one another], the parties therefore agree as follows.... Many modern contracts erroneously retain the Witnesseth even though a new verb appears in the preamble: This Agreement is between [one party and the other party]. After the preamble is a period, followed by an all-capped witnesseth. It is an example of a form retained long after its utility, and most lawyers do not know what it means or even what purpose it once served.
Black's Law Dictionary, 9th-by Garner - West, a Thomson Reuters business

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