Is "hereby" archaic?

[kemitchell]

@jboehmig, what's your view on "hereby"?

I am wont to strike it as archaic. Others, notably Ken Adams, agree it's archaic but give it a pass as an irreplaceable way of signifying that something is done by means of the document. Ken in particular is concerned that simple-present, indicative sentences without "hereby" can sometimes read as statements of habitual action, rather than present action contemporaneous with signing of the document.

[rickcolosimo]

Two answers:

1. It is surely overused, and so your archaic assessment is likely correct in many circumstances.
2. For the ones that fit Ken's model of signaling a present action, there are two courses of action: the first is to sidestep the issue by redrafting to a "shall" sentence and maybe ignoring the hereby (but that may just punt the issue to something like a bill of sale or a separate assignment & assumption agreement, or any of the other ancillary documents that we attach to asset purchase agreements).
3. Reading over this again, the real issue is whether a bald statement like X sells Y to Z will be misinterpreted as a different category of contract language. If the drafter is more attentive to framing statements as recitals, representations, or acknowledgements, or admissions or stipulations, even, then that leaves the verb to mean what it says and reduces the risk of misinterpretation. But this approach isn't one that can be implemented only with a stray "hereby' the way that a stray "herein" can be replaced. So my suggestion below seems more appropriate and effective in more cases without wholesale style revisions.

The second course of action is to find a different signaling word.

X hereby transfers Y to Z => ?

And once the drafter has selected this course of action, the test is whether that other word is better - clearer or shorter or more standardizeable - than the six letters of "hereby" and their history.

By this Agreement:

X by this Agreement sells Y to Z.

That's the way we solve for herein, wherein, therein, hereinbelow, hereinafter, and all the other ones that choke our sentences.