Revisiting “Representations and Warranties”

The Nov.–Dec. 2005 issue of Business Law Today contains my article A Lesson in Drafting Contracts: What’s Up with “Representations and Warranties?” Because in this article I give a categorical thumbs-down to a usage present in the overwhelming majority of corporate agreements, I was prepared for some pushback. So when Business Law Today published in its Jan.–Feb. 2006 issue Tina Stark’s note … [Read more...]

New Article on MAC Provisions

I've just posted on the "Ken Adams's Articles" page a copy of my article Understanding "Material Adverse Change" Provisions, which is in the June 2006 issue of The M&A Lawyer. As I explain in the article, it's a more concise and practitioner-friendly version of the analysis of MAC provisions contained in MSCD and my law review article on the subject. … [Read more...]

Pre-closing Knowledge of Inaccurate Representations

This weekend, I decided to explore the implications of the Buyer knowing, pre-closing, that a Seller representation is inaccurate. (I haven't seen the various aspects of this topic treated together in any detail from the perspective of the drafter.) Here’s what I put together; you should consider it a first draft. I’d be happy to receive comments. Disclosing Pre-closing Knowledge of Inaccurate … [Read more...]

Schedules and Exhibits as Part of a Contract

It’s commonplace for drafters to assume that unless they say so explicitly, schedules and exhibits attached to a contract don’t constitute part of that contract. Here’s an assortment of contract language reflecting this assumption: Schedule A constitutes a part of this agreement. All exhibits referenced in this agreement are made a part of this agreement. The exhibits and schedules hereto … [Read more...]

Calling All Linguists—A Question Regarding Verb Use

With your indulgence, I’d like to talk grammar. At the heart of A Manual of Style for Contract Drafting is what’s discussed in chapter 3—the different categories of contract language and the verb use that’s appropriate to each. One such category is “language of performance,” which serves to memorialize actions of the parties that are contemporaneous with the signing of the contract. An … [Read more...]

Referring to Trademarks

I’ve spent a fair amount of time recently working on commercial agreements, and I’ve noticed that some companies require that their registered trademarks be stated in all capital letters, with the registration symbol “®” appended, whenever the trademarks are referred to in a contract. When reading a contract that refers repeatedly to, say, “FLEXORBALIN®” (I made that up), I find it distracting … [Read more...]

The Concept of “Tested” Contract Language

In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is “settled”). This argument has long been debunked, but because … [Read more...]

“Curly” and “Straight” Quotation Marks

I’ve been filling some gaps in my knowledge of Microsoft Word, and while browsing Word’s online “Help” database recently I was reminded of one of my favorite microtopics—“curly” and “straight” quotation marks and the role they play when you review contracts drafted by the other side to a transaction. In a serif typeface such as Times New Roman, curly quotation marks (also known as “curved” or … [Read more...]

“Notice” or “Prior Notice”?

Last February, Wayne Schiess, Director of Legal Writing at the University of Texas School of Law, asked me whether I had any views on a question that he had posed in his blog: Is there a difference between giving notice and giving prior notice? At the time my home office was draped in drop cloths, so my response was perfunctory and equivocal. Wayne ended up suggesting that there was a consensus … [Read more...]

The Contract Drafter as Copyright Violator

[Update: Go here for my article on this topic.] A forthcoming Missouri Law Review article by Davida Isaacs—it was featured in a recent item on the Wall Street Journal’s Law Blog—discusses whether one could bring a claim for copyright infringement based on unauthorized copying of litigation documents. This article was also mentioned in an item by Gordon Smith on Conglomerate Blog regarding … [Read more...]