Whereas is the archetypal legalism. It has been with us since the dawn of our legal system, and many lawyers think that it is high time that whereas was retired. It usually appears in Gothic print, perhaps because it belongs to that era. One popular writer on modern legal usage warns that “whereas can be trouble, despite its innocuous appearance. The reader as well as the writer needs to be especially careful about whatever follows it.” B. Garner, Modern Legal Usage (1987).
Whereas means literally “given the fact that” and it used to be every lawyer’s idea of how to begin a contract. The “whereas clause” of a contract functions as an introduction or preamble and it is not a part of a contract’s operative provisions.
Instead of prefacing each introductory fact by whereas, the more modern way to draft a contract is to begin with a section headed “Recitals” or an introductory statement, such as: “This contract is made with reference to the following facts.” In the Recital format you can, for example, introduce the subject matter of the contract and state the objective of the parties. For example:
The respective Boards of Directors of X Corp, and Conglomerate have approved the merger of X Corp with and into Conglomerate (the “Merger”) upon the terms and subject to the conditions of this Agreement and in accordance with the Business Corporation Act of the Jurisdiction; and
The respective Boards of Directors of X Corp and Conglomerate have determined that the Merger is in furtherance of and consistent with their respective business strategies and is in the best interest of their respective shareholders.