Monthly Archives: September 2007

More Fun with Language of Discretion—”Party X Hereby Grants Party Y the Right to [Verb]“

Yesterday was devoted to grading assignments submitted by students in my Penn Law contract-drafting course. One of them unintentionally made me aware of the formula …

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“Unless the Parties Agree Otherwise”

In grading student assignments, I found myself commenting on their use of unless the parties agree otherwise. I thought that I had already written something …

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Two Oddities

I’ve resisted the temptation to turn this blog into a drafting freak show. But what the heck—step right up! … In this article I offer …

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Using a “Master Agreement” Structure

I’ve occasionally worked on transactions involving parties who plan on engaging in discrete projects from time to time. Generally these transactions have been structured so …

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“Intentionally Omitted”

One of the participants at my recent Washington, D.C. seminar asked me about the notation “intentionally omitted.” I love being asked about stuff I hadn’t …

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“May But Is Not Required To”

Reader Mike reminded me of the usage may but is not required to, as in the following provision: Indevus may, but is not required to, …

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IACCM Executive Workshop in Seattle on Monday, September 24th

If commercial contracts are your thing and on Monday morning you find yourself in the Seattle area with some time on your hands, you might …

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“Will Not Be Required To” as an Alternative to Conditions

I’ve already had occasion to consider the distinction between obligations and conditions. (Click here and here.) Well, here’s another thought: If satisfaction of a condition …

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Document Analysis and Wordsensa Professional—Q&A with Sue Jakobek, VP Business Development of Adsensa

I recently spoke with a large company that was preparing to drastically reduce the number of template contracts that its lawyers and business people had …

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Another Article on What “Material” Means

The Sept.–Oct. 2007 issue of “Deal Lawyers” contains my article “What does ‘Material’ Mean.” Click here for a copy of the entire issue. This article …

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“Reasonable Endeavours” and “Best Endeavours”—The Australian Angle

A reader from Australia emailed me the following: You may be interested to see what the Courts of New South Wales make of the “difference” …

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Toronto “Language and Layout” Seminar on December 10th

On December 10th I’ll be in Toronto doing my “Contract Drafting—Language and Layout” workshop for Osgoode Professional Development. Click here to go to the relevant …

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A Useful Article on Sarbanes-Oxley and the Contract Process

Yesterday I encountered an article that discusses why Sarbanes-Oxley should be of concern to anyone who’s responsible for a public company’s contracts. There are doubtless …

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“Basis” (Including “Timely”)

Here’s another weapon in the never-ending war on verbiage in contracts—be careful how you use the word basis. As Bryan Garner says in Garner’s Modern …

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An Oddity at the Chicago Style Q&A

When I’m stymied by a particular English-usage question and I can’t find an answer in my usual sources, I’ll consult the Chicago Style Q&A, an …

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The Definition of a Defined Term Doesn’t Constitute a Lexical Definition

The opinion in Johnson & Johnson v. Guidant Corp. (the case I discuss in my post “‘Willful’—It’s Ambiguous”) contains the following statement: The relevant language …

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“Willful”—It’s Ambiguous

You should avoid using in your contracts the word willful (alternative spelling wilful), as it’s ambiguous. This lesson comes courtesy of Judge Gerard E. Lynch …

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Using Defined Terms in the Recitals

Here’s a point that I don’t make in MSCD but will be sure to make in MSCD2: Don’t use in the recitals defined terms that …

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Where to Put the Conditional Clause

Dick Wydick’s materials for our panel discussion at the ABA annual meeting included the following provision from the merger agreement for a transaction valued at …

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Including “Circumstance” in the Definition of MAC

A reader in Italy asked me about a short article that he had seen on www.breakingviews.com. I wasn’t familiar with this site, but it describes …

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