What does WITNESSETH mean? Black’s Law Dictionary, Ninth Edition, defines WITNESSETH as “shows” or “records,” and says it’s a word that “commonly separates the preliminaries in a contract, up through the recitals, from the contractual terms themselves.” The dictionary then disparages the word as an “antiquated relic” and “a form retained long after its utility.” Aside: what kind of dictionary tells you what words you should and shouldn’t use?
Interestingly, the WITNESSETH’s rebound coincides with the implementation of the SEC’s EDGAR system that made many contracts widely available. Then again, it also coincided almost perfectly with the housing bubble, an illustration of the perils of correlation and causation.
If you Google WITNESSETH, the highest-ranking hits are dictionary websites and blog posts by self-proclaimed contract drafting authorities telling you it’s wrong to use WITNESSETH. But then you scroll down and realize there are 804,000 other results, the vast majority of them contracts. WITNESSETH is still perhaps the single most powerful word that distinguishes a document that’s a contract from a document that isn’t. And that power grows, not declines, as the word fades from everyday usage.
That is the reason I chose WITNESSETH for this blog. Antiquated relic or not, there is probably no other single word that is a purer shibboleth to all lawyers who write contracts. The word only appears once in a contract, but every deal lawyer knows what it is, and almost nobody else has ever heard of it.
Would you actually spend billable hours editing a contract to put WITNESSETH into the recitals if it weren’t already in the precedent? Probably not. But on the other hand would you actually spend the client’s money editing it out of contracts? I hope not.
I am trying to reach deal lawyers with this blog who know that precedent works, and that creativity with forms is a recipe for disaster. Precedent documents are a form of data, one that until recently has not been harvested efficiently (more to come), and this blog is all about providing hard data for lawyers who want to serve their clients more efficiently. That’s what this blog WITNESSETH.