Monthly Archives: October 2007

Gamesmanship in Contract Drafting

As I was packing up after a recent in-house seminar, one of the participants—I’ll call him Sam—came up to me to discuss a point I …

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The Virgule, aka the Forward Slash

Reader Thomas Gould asked me about use in drafting of the virgule, also known as the forward slash. Here’s what Garner’s Modern American Usage has …

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“Arising Out Of” and “Relating To”

In the case Premium Nafta Products Ltd & Others v Fili Shipping Company Ltd & Others [2007] UKHL 40, the House of Lords—the highest appellate …

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Susskind on “The End of Lawyers”

The Times of London has published the first of six excerpts of Richard Susskind’s new book, “The End of Lawyers.” (Click here to go to …

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Covering the Bases in a Forum-Selection Provision

A cautious drafter would be advised to include in a comprehensive forum-selection provision elements that might seem redundant. Here’s why: An agreement could provide for …

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ACC Annual Meeting—See Me at the DealBuilder Booth

I’ll be in Chicago October 28–31, attending the annual meeting of the ACC (the Association of Corporate Counsel). And I’ll be attending as part of …

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New Adams NYLJ Article on “Shall”

Today’s issue of the New York Law Journal contains my article “Making Sense of ‘Shall.’” Click here to go to the PDF reprint. And click …

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Eliminating Incidental Information from the Introductory Clause

Last year I drafted the following introductory clause to a merger agreement: This merger agreement is dated March 23, 2006, and is between DARIUS TECHNOLOGIES, …

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Another Instance of “Best” as Rhetorical Emphasis

You’ve been very kind to tolerate my vendetta against best efforts, or more specifically against the notion that a best efforts obligation requires a greater …

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“Half” or “50%”?

Last week, 260 contracts filed on the SEC’s EDGAR system include one or more references to 50%. By contrast, only 85 used the word half, …

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“Frontloading”—A New Term is Unleashed on an Unsuspecting Planet

Way back in this August 2006 post I described how select information is often pulled out of the body of a commercial contract and placed …

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How Do You Refer to a Time Zone if the Time in Question Could Occur on Any Day of the Year?

A few weeks ago David Munn of Fair Isaac Corporation sent me the following email: Your email below reminded me of a pet peeve of …

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How Not to Incorporate a Virtual Attachment, Part Deux

In this March 2007 post I discussed language to use, and language not to use, when making an ancillary document—including a web page—part of a …

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MAC in the News Again

One of the consequences of my having written articles on “material adverse change” provisions is that I get calls from reporters asking for insightful observations …

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Don’t Use in Purpose Recitals the Phrase “In Accordance with this Agreement”

Consider the following purpose recital, plucked from an agreement filed last month on the SEC’s EDGAR system: WHEREAS, in connection with the transactions contemplated by …

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My, Uh, Nine Favorite Law Blogs

On Minor Wisdom, Ray Ward listed this blog as one of his ten favorite law blogs. So did China Law Blog. It’s great to have …

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“Only”

Here’s what Garner’s Modern American Usage has to say about only: Only is perhaps the most frequently misplaced of all English words. Its best placement …

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“Party” as an Adjective

The following constructions using party are commonplace: Acme is a party to a confidentiality agreement with Widgetco dated October 7, 2007. Acme and Widgetco are …

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IpVenture v. Prostar—Language of Performance or Language of Obligation?

Reader Mike told me about IpVenture, Inc. v. Prostar Computer, Inc. (Fed. Cir. Sept. 28, 2007). I’m delighted that he did, because it’s yet another …

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