1. The part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant. • The introductory words to the clause are ordinarily to have and to hold.
— Also termed to-have-and-to-hold clause. [Cases: Deeds 120. C.J.S. Deeds §§ 36, 231–236, 253–260, 262, 268, 270–274, 276–278.]
2. Oil & gas. The provision in an oil-and-gas lease defining how long the interest granted to the lessee will extend. • Modern oil-and-gas leases typically provide for a primary term — a fixed number of years during which the lessee has no obligation to develop the premises — and a secondary term (for “so long thereafter as oil and gas produced”) once development takes place. Most jurisdictions require production of paying quantities to keep the lease in effect.
— Also termed term clause. [Cases: Mines and Minerals 73.
5. C.J.S. Mines and Minerals §§ 241, 247, 253–254.] — Often shortened to habendum.
“This part of the deed was originally used to determine the interest granted, or to lessen, enlarge, explain or qualify the premises. But it cannot perform the office of divesting the estate already vested by the deed; for it is void if it be repugnant to the estate granted. It has degenerated into a mere useless form; and the premises now contain the specification of the estate granted, and the deed becomes effectual without any habendum. If, however, the premises should be merely descriptive, and no estate mentioned, then the habendum becomes efficient to declare the intention; and it will rebut any implication arising from the silence of the premises.” 4 James Kent, Commentaries on American Law *468 (George Comstock ed., 11th ed. 1866).
