Is “herein” ambiguous?

Originally published by Wayne Schiess.

Apparently so. Although the case law is sparse, herein has been construed to mean the individual section in which herein appears but also the entire document in which the section containing herein appears. Context dictates.

• In a section of the Los Angeles city charter, the word herein referred only to the section in which the word herein appeared and not to the charter as a whole. City of Los Angeles v. Layton, 75 Cal. Rptr. 143, 145 (Ct. App. 1969).
• In a will, the word herein referred to the whole will and not to the individual section in which the word herein appeared. Taylor v. Albree, 56 N.E.2d 904, 909 (Mass. 1944).
• The word herein referred only to the statutory section in which it appeared, and not to the entire article in which that section appeared. Sharp v. Tulsa Cty. Election Bd., 890 P.2d 836, 841 (Okla. 1994), as supplemented on reh’g (Jan. 31, 1995).

So be careful, drafters.

If you’re able, maybe change herein to

• in this section
• in this agreement
• in this statute
• in this will

Even better, but trickier if you’re relying heavily on a form, maybe change herein to

• in section 4

MS Word can create automatically update-able cross references if you want it to.

 

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