What is the meaning of witnesseth?
What is its legal definition?
How is witnesseth used in contracts and what are some examples?
We will define witnesseth, look at its historic and modern meaning, look at its use in contracts, compare it with recitals and look at several examples to see how it is used.
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Witnesseth meaning
Historic meaning
The term “witnesseth” is old English used as legal jargon for centuries meaning “to take notice of”, “to witness” or “bear witness of the following”.
To take notice
Historically, when contracts were drafted, lawyers included the term witnesseth in their contract indicating that the agreement was witnessed.
With the passing of time, the relevance of the term witnesseth has declined but it is still used in contracts to make them look more formal or official.
Contracts can be validly signed without employing the term witnesseth
Modern meaning
If we use the word WITNESSETH in our contracts today, what does it mean in modern times?
One school of thought is that “witnesseth” means what it used to mean: “take notice of the following”.
However, another school of thought is that “witnesseth”, in its modern use, can be substituted in plain English by the term “RECITALS” or “BACKGROUND”.
Typically, the term witnesseth is used right before the recitals where background information about the contract is stated or the intention of the parties is documented.
The modern view in contract drafting is to use plain and simple English so a layperson can read it and understand its terms.
Perhaps you can start the trend!
Witnesseth pronunciation
You pronounce the word witnesseth as “wit-ness-eth”.
It is pronounced pretty much as it is written.
Witnesseth definition
According to Cornell Law School’s Legal Information Institute, witnesseth is defined as:
A modified form of “witness” used as legal jargon. The general meaning is “to take notice of”.
What is notable with this definition is that the term ‘witnesseth’ is a modified form of the word ‘witness’ and it is used as legal jargon.
To define the term witnesseth precisely, it is an archaic third-person singular simple present indicative form of the word witness.
Witnesseth in contracts
You are likely to see the term witnesseth is in contracts.
The term will jump at you as it’s generally written in all capitals as “WITNESSETH” or “WITNESSETH THAT”.
Witnesseth is a legal jargon used in modern times not because it brings more value to a contract or a legal document but because “that’s how we’ve always done it”.
The field of law is highly precedent-driven and statements or terms from the past have a good chance of surviving over time even though they have lost their relevance.
That’s the case in point for the term witnesseth.
Here is an example of “WITNESSETH”:
As you can see in this example, the word “witnesseth” is used right before the start of the recitals or the “whereas” statements.
Here is an example of “WITNESSETH THAT”:
Witnesseth vs recitals
Recitals are formal statements appearing at the beginning of contracts, deeds and legal documents that are preliminary in nature and provides information about the following:
- Background information related to the transaction
- The intention of the parties
- The context of this transaction related to other simultaneous transactions
Recitals are introductory statements or description of the factual background leading to this contract or legal document.
Witnesseth is a term used, separating the appearance of the parties from the recitals.
Instead of writing “WITNESSETH”, a person can validly write “RECITALS” without having an impact on how the contract may be interpreted.
Witnesseth examples
To illustrate how the term witnesseth is still used in modern times in contract, let’s look at some examples of public documents filed by American organizations on EDGAR.
Example 1: Witnesseth before recitals
Example 2: Witnesseth before recitals
Example 3: Witnesseth in an amendment
Witnesseth FAQ
What does witnesseth mean?
The term “witnesseth” is used in contracts, wills, deeds and legal documents for centuries.
It is old English used to say “take notice of the following”.
Today, it is used in contracts right before the recitals and right after the appearance of the parties.
It does not bring interpretative value to the contract but does not harm the contract either.
Pure modern lawyers will argue that it should not be used in contracts while others use it to keep a certain legal tradition or ways.
How you write your contracts is up to you!
How do you spell witnesseth?
The spelling of the term witnesseth is quite simple, it’s the combination of the word “witness” and “eth”.
“WITNESS”-”ETH”
What is a contract recital?
Recitals are formal statements appearing at the beginning of contracts, deeds and legal documents that are preliminary in nature and provides information about the following:
- Background information related to the transaction
- The intention of the parties
- The context of this transaction related to other simultaneous transactions
Related Articles
Check out our article on “Including But Not Limited To“, “Inter Alia” and “Inure” to discover more legal terms used in contracts.
