3. (Non)sense of hendiadyses and quasi-synonyms

This is the third blog about doublets and triplets in contracts (for the previous parts click here). Part 4 will follow shortly. If you missed one or two of those typical contract-hendiadyses or quasi-synonyms, please let me know (or address it in reaction to this or a previous blog).

Legal and valid. Many drafters qualify rights or obligations to be legal. The doublet legal and valid is often found in warranties regarding legal and valid entitlement to an asset. Outside the common law, this qualification does not add anything to what follows. Someone is either entitled to something or not; the validity may legitimately be requested to be warranted but such entitlement being legal is superfluous. Legal originates from distinctions between ‘law’ and ‘equity’, which is pre-eminently a common law phenomenon (the meaning of which has diminished considerably over the past centuries). Where it is used in the context of property, legal refers to the (common law) distinction between ‘legal ownership’ and ‘economic ownership’. Unless such distinction is actually made, it would be superfluous (or even ambiguous) to refer to it. An example of a very similar issue, but outside the scope of this item, is a statement (e.g., in an LOI, letter of intent) that a certain provision is “legally binding”. Whether or not this is the case, is something for the law to establish, not for contracting parties (binding would be more than enough). Finally, the term legal can be opposed to moral (not in court enforceable) obligations.

Made and entered into. A ‘contract’ is not ‘made‘; it is the written reflection of consent between the parties (i.e., their actual, mental agreement) and therefore rather entered into by execution of the document. Under common law a contract is considered not as a ‘meeting of minds’ but rather as ‘bargain’ (which explains the requirement of ‘consideration’ for any promise). Similar remarks could be made about entered into, making either of the two parts of the phrase redundant.

Power and authority. Power is not a word with a specific legal meaning. (It is colloquial speech used in connection with the word authority.) Other than in the context of power of attorney, it adds nothing to what authority (‘to represent’ or ‘to achieve a legal result’) already embodies.

Right, title and interest. A right is an entitlement to something, typically used in relation to intangibles (as opposed to tangible goods). Most often, merely right is meant by the phrase right, title and interest. Title refers to ‘being entitled’ but would in continental European jurisdictions refer to the title by virtue of which a party acquires or acquired the legal possession of a good or right (e.g., sale, succession, merger, but also lease, license or mortgage). In a European context, interest has no legal significance other than that persons who fail to have a (legitimate) interest, will be declared inadmissible in their (court) action. In the common law, interest is a somewhat random reference to certain (equitable or common law) property rights in a good.

Related Articles

Terms of Use

I hereby accept (or reconfirm my acceptance of) Weagree’ Terms of use, in which: