19 July 2014

What does "in witness" mean in in my legal document?


What meaneth witnesseth?


What do those strange words about "witnesseth" (or similar) mean, at the beginning and end of a legal document?

Apart from telling you that your solicitor is a bit old-fashioned, they don't add a great deal.

"In witness whereof" does not have anything to do with witnesses to the signatures. It means "as evidence of which", or "to demonstrate their agreement". It has no particular legal significance in the modern age, except that in England a document intended to have effect as a deed must say so, and this is the usual place to do that: "in witness whereof the parties have executed this document as a deed on..." This is the "testimonial clause"  or "incujus rei testimonium" and it matches the testatum at the beginning of the document, after the recitals, traditionally "Now this deed witnesseth...". What is sandwiched between the two is the operative part of the deed, so the recitals or schedules do not normally have legal effect as operative provisions unless the deed says so.

It can certainly but put in modern English. I start the business part of my documents with a heading "Operative provisions:" and end with "The parties have [signed this agreement][executed this document as a deed] on the date stated at the top of page 1." I just hope my abandoning tradition never ends up being challenged in the Court of Appeal!

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