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 had made. I had said that the phrase indemnify and hold harmless is pernicious, in that it invites litigators and judges to find nuances of meaning where most likely none had been intended. (For more on this, see these three posts.) Sam disagreed—he thought it … [Read more...]

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 to say: Some writers use [the virgule] to mean "per" (50 words/minute). Others use it to mean "or" (and/or) or "and" (every employee/independent contractor must complete form XJ42A). Still others use it to indicate a vague disjunction, in which … [Read more...]

“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 court in the U.K.—has struck a blow for semantic sanity by holding that no valid purpose would be served by distinguishing between arising under and arising out of. I permit myself to quote a useful account prepared by the solicitors Fenwick … [Read more...]

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 the excerpt.) The book will be coming out in May 2008. Susskind is a well-known English commentator on law and technology. I've previously had occasion to mention him, namely in this post. To this casual reader it seems that he's been saying the same thing for a … [Read more...]

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 either permissive (also know as non-exclusive) jurisdiction or mandatory (also know as exclusive) jurisdiction. The following language provides for permissive jurisdiction: Any party commencing against the other party any … [Read more...]

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 the DealBuilder team. DealBuilder is the leading logic-based document-assembly software. It's developed by Business Integrity, a company with an impressive roster of clients. I've long said that only by embracing document assembly will major … [Read more...]

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 here to access it for free—at least for the time being—on the NYLJ's website. My thanks to those who were kind enough to review drafts of this article. The topic of shall came up during my panel discussion with Richard Wydick and Bryan Garner at this summer's … [Read more...]

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, INC., a California corporation (“Parent”), SWORDFISH ACQUISITION, INC., a California corporation and a wholly-owned subsidiary of Parent (“Sub”), TROMBONE SOFTWARE, INC., a Delaware corporation (“Target”), and the stockholders of Target, … [Read more...]

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 effort than a reasonable efforts obligation. But I'm not done yet. The foundation of my argument is the notion that the best in best efforts constitutes rhetorical emphasis. I discuss that in this post. And in this post I elaborate on how … [Read more...]

“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, and mostly in contexts where one couldn't have used 50%, as in references to "half-time basis" and "seven and one-half percent." I prefer half over 50%. Saying "50% of the shares" rather than "half the shares" is like saying "I ate 1.0 apples" rather than "I … [Read more...]

“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 at the top. In my post I expressed reservations about this practice, but the commenters set me straight. I referred to this practice as "the box," given that the abstracted information is often presented in tabular form. But as terms go, that one's rather … [Read more...]

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 mine that I don't believe you've written about. You wrote "My class runs from 4:30PM to 6:30PM EST." Your usage is correct because you are referring to a time in November. However, I'm seeing more and more people using the acronyms PST, CST, EST, and GMT in … [Read more...]

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 contract without physically attaching it. (I subsequently invented the term “virtual attachment” to describe any such ancillary document.) What prompted that post was a case that held that saying that the contract at issue was "subject to" a virtual … [Read more...]

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 about any MAC dispute that makes the news. This time, it's the lawsuit filed by Sallie Mae against a buyout group led by J.C. Flowers. Click here to see the WSJ Law Blog's item on this dispute. But the sad fact is that the utterly … [Read more...]

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 the Asset Purchase Agreement, Buyer desires that Seller Manufacture (as defined herein) and supply certain Products to Buyer, and Seller desires to Manufacture and supply such Products to Buyer in accordance with this … [Read more...]

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 people acknowledge my efforts in this manner. But apparently I now have to share the luuurve by naming my own ten favorites. I used to be a chronic non-joiner, but evidently blogging has turned me into some kind of new-age, touch-feely type, because here I am, dutifully … [Read more...]

“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 is precisely before the words intended to be limited. The more words separating only from its correct position, the more awkward the sentence; and such a separation can lead to ambiguities. ... Yet the strong tendency in AmE is to stick only … [Read more...]

“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 parties to a confidentiality agreement dated October 7, 2007. In the above examples, party is used as a noun. I suggest that in this context it would be preferable to use it as an adjective. That would result in the same … [Read more...]

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 case that I can point to in making the argument that to control your drafting you need to clearly distinguish one category of contract language from another. IpVenture owns and licenses patents on inventions relating to management of personal … [Read more...]