LawProse Lesson #148: What’s wrong with WITNESSETH?

What’s wrong with putting “WITNESSETH” at the head of a contract? It harks back to an old mistake dating from mid-20th-century formbooks. Witnesseth, you see, is an archaic third-person singular form of the verb (witness), equivalent to cometh (The Ice Man cometh) or sayeth (Further affiant sayeth naught). It would make sense, in Elizabethan English, to say, “He now witnesseth several things” — equivalent to “He now witnesses several things.” In 19th-century and earlier contracts, witnesseth was part of a long contractual sentence: “This Agreement, by and between . . . , witnesseth that . . . , whereas . . . .” This Agreement was the subject of witnesseth. For many decades, though, American lawyers have added a new verb (is) to their preambles: “This Agreement is by and between . . . .” Then they’ve used the W-word as a kind of heading, most of them mistakenly believing that it is an imperative verb meaning something like “Lookie here!”: WITNESSETH: [etc.]. That’s just a mistake — one perpetrated on a massive scale in American law. The more modern contractual style, of course, is to omit it altogether. Next week: “Further affiant sayeth naught” — or is it not? And is it saith? For further reading on witnesseth, see Garner’s Dictionary of Legal Usage 950 (3d ed. 2011) and Marie Antoinette Moore, “Every Contract Tells a Story (or Should),” Prob. & Prop., Jan.-Feb. 2014, at 64.