One of the best things about having this site is that I’m constantly learning things. All sorts of things. Below is an email sent to me by a lawyer who wishes to remain anonymous. I’ve slightly edited his email and with his permission, turned it into a post. Enjoy:
“I enjoy your Connecticut law blog very much. One thing, though, bothers me as a lawyer: Your use of the word ‘presently,’ as in this sentence:
This comes at a time when foreclosures and seriously delinquent home loans in Connecticut jumped more than a full percentage point in the last quarter of 2009. Connecticut’s foreclosure problems are presently getting worse.
When I was trained as a lawyer in the 1970s, a senior partner told me if I ever used ‘presently’ in a contract to convey the concept of ‘currently,’ ‘at present’ or ‘now,’ he would beat me with a stick. This is because ‘presently’ inherently is ambiguous.
Its historical meaning is ‘in the near future’ as in ‘I will attend to your needs presently, Watson.’ In modern American usage, a different meaning has been creeping in, as your blog entry shows.
You are not alone in using ‘presently’ as a synonym for ‘currently;’ indeed, you are quite modern. But you may be creating ambiguity out there and, certainly, you are adding a discordant note in an otherwise flawless score, at least to this blog reader.
P.S. I saw with amusement in one of your earlier postings that at least one Connecticut court also misused ‘presently.’”
See here:
What are the requirements for a valid marriage ceremony in Connecticut?
1. The physical presence of the parties before an official licensed to perform a marriage ceremony in Connecticut; and 2. A third party official must witness or officiate at a ceremony herein the parties each presently consent to marriage. Hames v. Hames, 163 Conn. 588 (1972).
So, the ambiguity I reference above might have interesting — and absurd — consequences in the context of Connecticut marriage.
I, very respectfully, must disagree with this blogger. According to PITA, a legal research tool, there are 1340 cases from the Connecticut appellate courts that have used the word “presently,” including the first use I can find: “To constitute an appropriation of this kind there must be an actual intent to take, presently, or in the near future, and that intent must be manifested and carried out by apt and suitable acts.” New Haven Water Co. v. Wallingford, 72 Conn. 293, 302 (1899). Clearly, even in 1899, our Supreme Court used presently to mean currently. Although I have not read every case, I did glance over many of them – all of which were using presently to mean currently.
Also, I point the blogger to the Merriam-Webster’s Collegiate Dictionary, 10th edition, which defines “presently” as follows: 1 a (archaic): at once; b: before long: without undue delay. 2: at the present time: NOW.” It then notes: “Both senses 1b and 2 are flourishing in current English, but many commentators have objected to sense 2. Since this sense has been in continuous use since the 15th century, it is not clear why it is objectionable. Perhaps a note in the Oxford English Dictionary (1909) that the sense has been obsolete since the 17th century in literary English is to blame, but the note goes on to observe that the sense is in regular use in most English dialects. The last citation in that dictionary is from 1901 Leeds newspaper, written in Standard English. Sense 2 is most common in contexts relating to business and politics . . . .”
So, Ryan, I presently condone your use of the word presently to mean currently.
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Ah, here is an example of why lawyers should not tread lightly into the field of etymology — and always can find something to argue about.
In defense of the assertion that use of the word “presently” sows (or may sow) ambiguity and thus that its use should be avoided by the careful legal draftsman (no matter how often the courts of Connecticut may have used or misused the word), one may look to the area of risk management for enlightenment. See here, for an amusing and instructive comment about how useful the inherent ambiguity of “presently” may be to practitioners of that craft in predicting the likelihood of future events:
http://www.riskinfo.com/rmr/rmraug01.htm
The point for lawyers is that avoiding the use of “presently” in a contract is itself a form of risk management, unless one’s aim is to create ambiguity by using a word with two alternative meanings instead of a synonym (currently) with only one.
This said, I presently will cease this commentary (you know what I mean).
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Okay. I have continued to think about this, and I do have to concede that, although our appellate courts use it regularly, some people might (and actually do) argue that presently is ambiguous. Therefore, a thoughtful attorney would be better advised to avoid using it altogether. Who would have thought that I would learn such an important point on A Connecticut Law Blog? Thanks Ryan.
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What’s not clear to me is why you need any word at all. English has present tense verbs. If I say “It is raining” doesn’t that mean, like, now. If I say “It is raining at this time” I sound like a Watergate felon. If the statute read “A third party official must witness or officiate at a ceremony herein the parties each consent to marriage.” wouldn’t that mean they consent at the time of the ceremony?
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Ah, but that would require our Connecticut legislators to draft statutes with economy and precision. Good luck with that.
For an example of a very well expressed statute regarding how a marriage must be solemnized, see Section 12 of the New York Domestic Relations Law, which provides as follows:
“No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony.”
No ambiguities in that, and no presently, either.
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gerardw Reply:
March 3rd, 2010 at 8:03 pm
What if there is a clergyman AND a magistrate at the ceremony? Is another witness still required?
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On the face of the New York statute, the answer is no — provided one does the solemnizing and the other acts as a witness.
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I don’t believe there is any actual ambiguity in the word “presently.” Anytime it is used in conjunction with a verb in the present tense, it means it is happening right now. Anytime it is used in conjunction with a verb in the future tense, the original definition of “shortly in the future.” For example, if you say “she will arrive presently” (will arrive being future tense) you essentially mean “she is arriving shortly.” If you were to say “she is arriving presently” this most certainly means that you can hear her coming up the stairs or getting out of the car and is right now in the process of entering the room. Perhaps there is a situation where this does not apply?
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