I’ve had in the can for a few weeks a partly completed blog post on the subject of the phrase moral turpitude. This phrase features in various kinds of agreements providing for an ongoing relationship, but I associate it with employment agreements in particular. The post remains unfinished because although I’ve identified the problem with [...]
In my recent article advocating disciplined use of shall I mention that I haven’t seen any evidence of a flight from shall. At any given time individual lawyers, or groups of lawyers, or conceivably entire organizations, might eschew shall. But I have a hard time imagining that it could be commonplace for any group of [...]
“The part versus the whole” is the term I use to refer to ambiguity regarding whether a single member of a group of two or more is being referred to, or the entire group. Along with materiality, it’s the most complex topic I’ve written about. That helps explain how the literature on drafting has so [...]
On December 5 I do my final West Legalworks seminar of 2007, in Miami. But in case you thought that was it, here are—drum roll, please—dates for additional U.S. “Contract Drafting—Language and Layout” seminars for the first half of 2008: February 13, Phoenix, AZ February 28, Houston, TX March 6, Orlando, FL March 12, Richmond, [...]
The December 2007 issue of the ACC Docket, the magazine of the Association of Corporate Counsel, contains the article “Transitioning Your Contract Process from the Artistic to the Industrial,” by Brian Quinn and yours truly. It provides an overview of issues that companies face in controlling the contract process and discusses some useful tools that [...]
Here’s yet another issue relating to use of may—the phrase may require. My principal problem with may require is that in its most common use, it frames as Party X’s discretion what is best thought of as Party Y’s obligation. I recommend that you omit this use of may require in favor of language of [...]
The following sentences express the same meaning: If it receives Acme’s prior written consent, the Vendor may cause one or more subcontractors to perform Services. Unless it receives Acme’s prior written consent, the Vendor shall not cause any subcontractors to perform Services. Which would you be inclined to use? Would your answer vary depending on [...]
In this post I discuss “needless elaboration”—the tendency of drafters refer to a given set, then refer to subsets that compose all or part of that set, even though there’s no question as to the boundaries of that set. I give as an example use of the phrase at law or in equity. I’d like [...]
In my post on “termination for convenience” (click here) I said that in language providing for termination for any reason you can dispense with the phrase at any time, as that concept is implicit in termination for any reason. But the point can be made more broadly—the phrase at any time would seem to be [...]
In MSCD 2.3 I recommend that you not use a title that looks at one transaction from different perspectives, as in agreement of purchase and sale. I’m thinking that the same approach applies when one party engages another to provide services. In other words, if I say “Acme hereby engages the Consult to perform those [...]
My contract-drafting class at the University of Pennsylvania Law School focuses on the building blocks of contract language. But we’d be reckless if we didn’t also consider process—more specifically, the implications of the fact that contract drafting is an industrial-scale team sport. To that end, we devoted last week’s class to two online document-assembly demos. [...]
In this October 2007 post, I discuss how placement of only in a sentence can affect meaning. Well, here’s another issue relating to use of only—the ambiguity that arises when you use only in language of discretion. Consider the following sentence: Acme may close any one or more Contract Stores for any reason, and in [...]
I sporadically find myself discussing the nexus between contract drafting and contract law, or rather the contract law that’s taught in the first year of law school. A reader pointed out to me this post on the Conglomerate Blog, which offers a musical analogy to explain the relationship. Buried deep in the comments to that [...]
During a CLE session at the recent Associate of Corporate Counsel annual meeting, one of the panel members used the phrase termination for convenience. It’s a phrase I don’t encounter too often, so I thought I’d better look into it. The Implications of “Termination for Convenience” A quick review of contracts on the SEC’s EDGAR [...]
Today one of my former Penn Law students sent me the following email: I just thought I’d write you a quick note and let you know how incredibly helpful your class has to been to me over my last 3 months of law practice. I am drafting all the time—largely because the partners I work [...]
In my tireless quest to master all things related to materiality, I recently asked myself what the heck material breach means. I suspect that if you were to ask that question to a random sample of lawyers and business people, you’d mostly get a lot of hemming and hawing. By extrapolating from my analyses of [...]
Earlier this week I received the following email from a reader: Could you please do a post about your thoughts on enforcing contracts that use faxes or pdf scans as the only proof of the other party’s acceptance? People seem very reluctant to send ink-on-paper originals these days. The Uniform Electronic Transactions Act (adopted in [...]
An abandoned blog can be mildly poignant. Everything is as it was when the proprietor up and left. It’s like encountering the Mary Celeste. This thought came to mind when I rediscovered Corp Law Blog, which Mike O’Sullivan, a partner at the Los Angeles office of Munger, Tolles & Olson, posted to between May 2003 [...]
It’s commonplace for drafters to use the phrase action or proceeding. Consider the following extract from a jurisdiction provision: Any party bringing against another party any legal action or proceeding (including any tort claim) arising out of this agreement may bring that action or proceeding in the United States District Court for the Eastern District [...]
A new document-sharing site, docstoc, has just opened to the public. Its slogan is “Find and share professional documents.” Here’s one of the FAQs: What is docstoc? docstoc is a user generated community for sharing professional documents. Find a vast quantity of high quality legal, business, technology, educational, and creative documents for free. docstoc allows [...]
