“Sticky Contracts”

I just learned a new term—"sticky contracts." It refers to the tendency of drafters to stick with a given form contract, even if it contains suboptimal provisions. Gordon Smith has a post on the subject at the Conglomerate blog. Gordon discusses some possible causes of stickiness. As I suggested in a comment to his post, I'd be inclined to attribute much of it to the fact that using, with … [Read more...]

Rethinking “Material” and “Material Adverse Change”

I should have had enough of material and material adverse change, given that I discuss materiality in chapter 7 of MSCD, in this law review article, and in this article in the M&A Lawyer. But the topic continued to nag at me, and recently the fog cleared—I realized that my analysis was significantly flawed, and I also figured out how to fix it. Background The problem with material is that … [Read more...]

Third Toronto “Intensive Contract Drafting Workshop”

On Monday, April 30th and Tuesday, May 1st, I'll be in Toronto giving my third "Intensive Contract Drafting Workshop," as usual under the auspices of Osgoode Hall Law School's Professional Development Program. To find out more, click here to go to the Professional Development Program's website and click here to see the brochure. As in the previous workshops, the first day is entitled "Language … [Read more...]

“That” and “Which”

I'm grateful to David Gurfein, an associate in the New York office of Cozen O’Connor, for informing me of AIU Insurance Co. v. Robert Plan Corp., 14 Misc.3d 1216(A), 2006 WL 3904521 (N.Y. Sup. Dec. 26, 2006). This case considers how confusion over the distinction between that and which can result in ambiguity. (Click here for a copy of the case.) First, some background. Garner’s Modern American … [Read more...]

New Article on Using Wikis in Contract Drafting

Today's issue of the New York Law Journal contains my first bi-monthly "Contract Drafting" column. It's in the inaugural issue of a new monthly section, "GC New York." (Click here to go to a copy of the column on the "GC New York" website; in the future, you may need to register. You may find this version prints better.) Entitled "Wiki, Anyone?," this column explores whether wikis could be a … [Read more...]

Simplifying Contracts

Reader David Munn recently wrote this item regarding an interview in which Tim Cummins of the International Association for Contract and Commercial Management asked the heads of Legal and Audit at Scottish & Newcastle, one of the world's largest brewers, about their contract simplification program, called Pathclear. Click here to go IACCM's web page about the interview; click here to see S&N's … [Read more...]

New Jersey Business Law Symposium

On March 9th I'll be one of the speakers at the 2007 Business Law Symposium organized by the New Jersey Institute for Continuing Legal Education. It will be held at the Sheraton at Woodbridge Place, in Iselin, New Jersey. I'll be conducting a 1.5 hour seminar in the afternoon on the structure of M&A contracts. I'm finishing up an article on the subject, and I look forward to discussing with … [Read more...]

Superfluous Provisions

A reader recently sent me the following email: I’d appreciate your comments on an issue that’s been plaguing me off and on. I often see contracts with a fixed term. This works for a lease or license or a funding agreement where government agrees to provide funding to an entity for a specific period. At the end of that period, the obligations simply end as neither party has any continuing … [Read more...]

Yesterday’s Seminar in New York

My New York "Contract Drafting—Language and Layout" seminar took place yesterday. I haven't yet reviewed the evaluations, but the participants appeared to have found it very useful. For my part, I enjoyed myself—giving a seminar is a good antidote to staring at the computer screen. And I remembered to mute the wireless microphone during the breaks—a minor triumph. As usual, I came away with a … [Read more...]

“Termination” and “Expiration”

During a recent in-house seminar, a participant took issue with one of my sample provisions, namely This agreement terminates on August 23, 2007. The participant argued that termination entails one or more parties’ ending a contract sooner than it otherwise would have ended; he said that in this case the correct word to use would have been expires. At the time, I said something noncommittal and … [Read more...]

A New “Or” Case!

Last Monday I posted this blog item about how St. John’s Law Review had published a new article by me and Alan Kaye entitled Revisiting the Ambiguity of “And” and “Or” in Legal Drafting. So when I discovered, courtesy of Howard Bashman via the (new) legal writer, that the Eighth Circuit Court of Appeals had considered the meaning of or in a decision filed on February 2nd, I didn’t know whether to … [Read more...]

Adding Electronic Signatures to Contracts

If you want to know more about what's involved in adding an electronic signature to a contract, I suggest that you look at this post by Dennis Kennedy. In addition to links to some useful background information, it includes a link to a post by Adobe's Rick Bornstein on creating and using signature stamps in Adobe Acrobat. My interest in electronic signatures is that of a bystander: given what I … [Read more...]