Having Parties Date Their Signatures—Seeking Comments on Draft Language

In this blog post, I described how in certain circumstances you might want to date a contract by having the parties date their signatures rather than by including a date in the introductory clause. I also mentioned how adopting that approach would require that you use a different concluding clause than the one you'd use if you were to state the date in the introductory clause. But what I didn't … [Read more...]

Document Assembly—Q&A with Jamie Wodetzki, CEO of Exari

I’ve long been familiar with two big names in logic-driven document assembly, namely HotDocs, by LexisNexis, and DealBuilder, by Business Integrity. But over the past year I’ve increasingly heard another name mentioned, namely Exari. It’s the name of both a company and its product; the company is based in Australia. A few months ago I made the acquaintance of Andrew Davis, an Exari senior … [Read more...]

Saying You Have a Deal Before the Contract Has Been Finalized

Eric Goldman—he of the Technology & Marketing Law Blog and Goldman's Observations Blog—recently told me about an interesting case, EEOC v. Regal-Beloit Corporation, 2007 U.S. Dist. LEXIS 31818 (W.D. Wis. May 1, 2007). (Click here for a copy.) It relates to what can happen when you say to the other side in a transaction that you have a deal, subject to some trivial fixes. The Case On March … [Read more...]

New NYLJ Article on “Wordsmithing”

Today's issue of the New York Law Journal contains my article "Wordsmithing." Click here for a pdf reprint; it's also available on the GC New York website (free registration required). Regular readers of this blog will recognize the recent cases I refer to. And the article contains "before" and "after" versions of a contract extract. For a more extensively annotated "before" version, click … [Read more...]

Document Assembly—Q&A with Laura N. Williams, General Counsel and Director of Legal Professional Services, Ixio Corporation

One unfortunate aspect of my life as a drafting ronin is that my workload is so utterly varied and unpredictable that I’m not able to use most of the information-technology tools that promise to brighten the life of the contract drafter. I’ve remained outside the candy store, with my nose pressed against the window. In particular, I’ve long admired from a distance Ixio Legal QShift, which … [Read more...]

Two Aspects of “May”—A Case Study in Interpreting Contract Language

The other day, a reader of this blog—I'll call him John—contacted me about a problematic bit of contract language. (I'll refer to it as "John's language," although he didn't draft it.) To him, it was something of a mysterious nuisance, but when I read it, my heart went pitter-patter, in that I saw that it would give me the opportunity to further explore the dark heart of may. Here's John's … [Read more...]

“During the Term of this Agreement”

During the term of this agreement seems an innocuous enough phrase, but more often than not it's redundant. The default rule is that contract provisions that directly address party actions remain in effect only during the term of the contract. That means that if you use during the term of this agreement to modify language of obligation, discretion, or prohibition, you're just stating the … [Read more...]

Real-Time Document Collaboration

In my recent article on using wikis in the contract-drafting process, I suggested that a simpler way to capture the collarborative aspect of wikis without any of the anarchy would be to use an online-collaboration tool such as Google Docs. So today I noted with interest an article in Legal Technology entitled "Time for Lawyers to Collaborate in Real Time." It's by Brett Burney (a consultant) … [Read more...]

“Unless the Context Otherwise Requires”

Here are some examples, drawn from the SEC's EDGAR database, of provisions containing the phrase unless the context otherwise requires: Unless the context otherwise requires, capitalized terms used in this Agreement have the following meanings. Unless the context otherwise requires, references to the "Company" shall be deemed to refer to the Company and its Subsidiaries. Each of the … [Read more...]

“Costs and Expenses”

The doublet costs and expenses occurs routinely in contracts. Here's an example selected at random from the SEC's EDGAR database: If action is instituted to collect this Note, the Company shall pay all costs and expenses, including, without limitation, reasonable attorneys' fees and costs, incurred in connection with such action. Black's Law Dictionary gives the following definitions for … [Read more...]

“Competitive”

The word competitive is routinely misused in contracts. That comes as no surprise, given that it's routinely misused in legal and business writing generally. Competitive means (1) of, involving, or based on competition and (2) likely to succeed in competition. In the following contract provision, competitive is used to express the first meaning: Executive acknowledges the highly … [Read more...]

Contract Language and Layout—Ten Dos and Don’ts

Given that I've been blogging for a year, I thought I'd take the opportunity to pull together in this post, in the form of "dos" and "don'ts," some components of my online presence. The coverage is necessarily patchy, but it’s safe to say that in the past year I’ve been able to write about the issues that I feel most strongly about. DON’T include in your contracts stuff that’s meaningless. One … [Read more...]