Condition or Obligation?

In a previous post on this blog, I discussed the distinction between conditions and obligations. I said that if you express conditions using language associated with obligations, you shouldn't be surprised if a court concludes that what you had thought was a condition is in fact an obligation. A recent case, Cumberland Farms, Inc. v. Rian Realty, Ltd., 2007 U.S. Dist. LEXIS 30878 (E.D.N.Y. Apr. … [Read more...]

Covering the Bases—A Cautionary Tale from the Litigation Minor Leagues

Because so much litigation has its roots in deficient drafting, I keep half an eye on new case law, and I can be counted on to leap on anything that has a bearing one of my pet subjects. But I suspect that most cases that arise out of poorly drafted contracts don't involve hot-button drafting issues such as the meaning of best efforts. Instead, many disputes arise simply because the drafter was … [Read more...]

And Now a Word from the Redrafting Department

Given the attention I've been paying lately to my public seminars, my redrafting department—me—has asked for some airtime. Whoever you are, it's a very safe bet that the contracts you work with could do with some significant help. As one of my services, I redraft clients' contracts. By eliminating the broad range of problems that afflict contract prose, I make their contracts much clearer and … [Read more...]

More Information on West Legalworks Seminars

I have more information regarding the "Contract Drafting—Language and Layout" seminars that I'll be giving this summer with West Legalworks. For one thing, here's the brochure. And the "Public Seminars" page now contains links to the relevant pages of West Legalworks' website. … [Read more...]

Revenue Recognition and How You Date Contracts

One of the pleasures of contract drafting is that the parties are as a general matter left to their own devices. Of course you have to structure any given transaction in a way that takes into account legal, tax, regulatory, or other considerations, but as a rule how you do that is up to you. But sometimes outsiders are going to have a say. Here's an example: A participant in my recent New York … [Read more...]

“To the Best of Its Knowledge”

Last week a reader asked me whether I knew of any cases discussing the distinction between saying "to the Seller's knowledge" and saying "to the best of the Seller's knowledge." It's commonplace for drafters to use the phrase the best of when referring to someone's knowledge. For example, in the past month 98 contracts filed on the SEC's EDGAR database used to the best of the Company's … [Read more...]

New Article on Offshoring Contract-Related Work

Today's issue of the New York Law Journal contains, in the "GC New York" section, my second bi-monthly "Contract Drafting" column. Entitled "Sending Contracts Offshore," this column explores the possible benefits to U.S. companies of having their contract-related work performed outside the U.S. It also discusses factors to bear in mind when deciding whether to have such work performed by … [Read more...]

The U.K. Approach to “Representations” and “Warranties”

Via the InHouse Blog I learned of a briefing paper written by Leon N. Ferera, John R. Phillips, John Runnicles, and Jeffery D. Schwartz of Jones Day entitled "Some Differences in Law and Practice Between U.K. and U.S. Stock Purchase Agreements." It touches on various subjects of interest to me, but what caught my eye in particular was its discussion of representations and … [Read more...]

Save the Date!—New West Legalworks Seminars

I'll be doing for West Legalworks a summer series of my "Contract Drafting—Language and Layout" seminar. Here are the dates: June 19, Los Angeles June 21, Dallas June 26, Chicago July 18, New York City July 25, Seattle August 2, Boston I hope to see you there. Once the brochure and the relevant page of West Legalworks' website are ready, I'll post a blog item and put links up … [Read more...]

“Joint and Several”

When more than one party is making a set of representations, it's commonplace for drafters to use in the representations lead-in the couplet jointly and severally, as in "The Sellers jointly and severally represent to the Buyer ... ." One also sees jointly and severally and its adjectival counterpart, joint and several, used with obligations. For example, I've seen it recommended that in … [Read more...]

Using “May” to Indicate Possibility

In any contract, may can be used to convey two meanings. (I'm not counting the superfluous may discussed in MSCD 3.58.) May primarily serves to convey discretion, as in The indemnified party may at its expense retain separate co-counsel. But may can also be used to convey the possibility of something coming to pass, as in Acme may be subject to further litigation. Using one word to convey … [Read more...]

Law Firms Helping to Implement Law-Department Document Assembly

In this post, Rees Morrision of the Law Department Management blog notes how some law firms are helping law departments implement document-assembly initiatives. I'm glad to see that document assembly is gaining ground. But given the questionable quality of mainstream contract drafting at even the biggest law firms, I suspect that such arrangements are susceptible to GIGO. … [Read more...]

Yet More on “Indemnify” and “Hold Harmless”

[Update: For my 2012 take on this topic, see this post.] In an October 2006 post I discussed the terms hold harmless and indemnify. I noted that Black’s Law Dictionary states that the two terms have the same meaning whereas Mellinkoff’s Dictionary of American Legal Usage says that one can also distinguish the two terms—that “hold harmless is understood to protect another against the risk of … [Read more...]

Lawyers and Contract-Management Personnel—Never the Twain Shall Meet?

On April 11–13, the American chapter of the International Association for Contract and Commercial Management (IACCM to its friends) will be holding in New Orleans its “5th Annual Forum on Commitment Management: Shaping Change and Driving Value Through Lean Contracting.” (Click here for more information.) IACCM is an organization geared to the needs of contract-management personnel. As I looked … [Read more...]

“Including Without Limitation”

This blog has revisited sporadically topics that I’ve decided aren’t covered adequately in MSCD. Here’s another one—the verb include. Illustrative Versus Restrictive Including and includes have traditionally been used to introduce a nonexhaustive list. Here’s how Black’s Law Dictionary defines include: “To contain as a part of something. The participle including typically indicates a partial … [Read more...]