I generally stay away from drafting issues, but thought I’d mix things up a bit.
Depositary and depository
Depositary in US contracts has always seemed wrong to me. Shouldn’t it be depository?
No, in fact. The two words, while ‘often confounded’ (as the Oxford English Dictionary Online puts it), mean different things.
A depositary is ‘a person [natural or otherwise] with whom anything is lodged in trust; a trustee; one to whom anything (material or immaterial) is committed or confided; …a bailee of personal property, to be kept by him for the bailor without recompense.’
A depository, on the other hand, is ‘a place or receptacle in which things are deposited or placed for safe keeping; a storehouse, a repository’.
So a depositary must be a person (including an artificial one at law) who holds onto things for you, while a depository must be a place or thing where or in which you put things.
I take some comfort, however, from the knowledge that depository used to be used of people too (but not since about 1878).
Indemnitor and indemnitee
Please, no. These are recent American coinages, and not attractive ones. Just say indemnifier and indemnified (or indemnified party).
There is no need for the faux neo-Latin and the clunky –ee back-formation.
It could be worse, however: the Oxford lists indemnificator – but says it’s ‘rare’ (only one example of usage, from 1827).
Whereas and witnesseth
I agree with Ross Guberman (Deal Struck: The World’s Best Drafting Tips (2014)) that these terms in contractual recitals are ‘substantively harmless’, but unless you’re drafting on parchment with a goose-quill, don’t use ’em.
Next week: confusing pairs, part 5