5/9/17 The Use of Whereas
This word implies a recital, and in general cannot be used in the direct and positive averment of a fact in a declaration or plea. Those facts which are directly denied by the terms of the general issue, or which may, by the established usage of pleading, be specially traversed, must be averred in positive and direct terms; but facts, however material, which are not directly denied by the terms of the general issue, though liable to be contested under it, and which, according to the usage of pleading, cannot be specially traversed, may be alleged in the declaration by way of recital, under a whereas.
The term whereas is used two ways. It is derived from Middle English and can mean “on the contrary,” as in the sentence, The orange juice can label said “fresh squeezed,” whereas the contents were made from orange juice concentrate.
In the law the term whereas also is used as the introductory word to a recital in a formal document. A recital contains words of introduction to a contract, statute, proclamation, or other writing. In a contract a whereas clause is an introductory statement that means “considering that” or “that being the case.” The clause explains the reasons for the execution of the contract and, in some cases, describes its purpose. The whereas clause may properly be used in interpreting the contract. However, it is not an essential component for its operative provisions.
Court orders typically use whereas clauses before the clause or clauses containing the directions of the court. For example, a court might declare that “whereas the plaintiff made a motion to compel the production of certain documents, and whereas the court has held a hearing on the motion and is fully advised on the matter, now therefore it is hereby ordered that the motion to compel the production of the documents requested is hereby denied.”
When whereas is placed at the beginning of a legislative bill, it means “because” and is followed by an explanation for the enactment of the legislation.
Finally, whereas is often used in official proclamations to project the solemnity of the occasion.
The term has been criticized as an overused legal formalism that clutters contracts and other legal documents. Legal formalism means the special usages of the language of law, many of which are archaic and which are flourishes of a style long dead.