How lawyers use the word … #1 “whereas”

Lawyers use some words differently in practice from how the term is used in its ordinary sense, which will be explored in this new series. I have a list of over fifty such words.

The classic example of this in all the Legal English textbooks is consideration. Most people use that word to mean “giving careful thought over time” or “being thoughtful of others”. Lawyers use it to describe the price paid for a promise in an agreement. Consideration is the central idea in the common law of contract and is required, in most cases, for a contract to be enforceable. It can take several forms: doing something, not doing something, or giving money, some property, or a promise. The popular form can still come close to the legal meaning when "in consideration of" means "in return for" (In consideration of your kindness to me as a neighbour over the years I would like you to have my antique vase that I know you like): in law, past consideration is not valid consideration, as you know.

Whereas is one of those words that lawyers use in the opposite way to general speech. It is commonly used to compare or contrast two different things.

David loves holidays abroad, whereas his wife prefers to stay at home.

Doctors' pay rose by 10% last year whereas nurses' pay went down by 2% in real terms.

By contrast, lawyers use the word whereas to link things that are true. In a contract, for example, there may be a section that sets out some facts that are the background to or the setting of the agreement, and the reasons for it being made. This may also be called the recitals or background.

A service contract between a software company and a programmer may have a section like this:

Agreement between:

SoftgenX plc (The Company) and

William Victor Fence (the Programmer)

Whereas

A The Company is considering a national expansion of its AI capability, more fully described in the Business Plan.

B The Programmer is experienced in providing coding services in an AI environment.

C The Company wishes to commission the Programer to investigate the potential market for the products described in the Business Plan and prepare a report and recommendations, as described in the Specifications. The Programmer is willing to provide such services, all by the terms of this Agreement.---

Should you use the word whereas?

Whereas is one of those words that fall into the category of legalese, words that lawyers love to use, but they belong to the past, like hereunder, herewith and hereinafter.

You can easily avoid using it when drafting for a client directly. Instead, use the example already given; background. It is more difficult when negotiating a contract with another lawyer, especially if they are a fan of legalese, but try to set a good example of how a modern lawyer should draft.