“Moral Turpitude”—An AdamsDrafting Complete-the-Blog-Post Competition!

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 the phrase, I'd like some input from people who … [Read more...]

A Law Firm that Forbids Use of “Shall”?

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 lawyers—a notoriously free-spirited bunch—to proscribe use of shall by the … [Read more...]

Mass Nouns—Another Source of “The Part Versus the Whole” Ambiguity

"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 thoroughly botched this subject. It's discussed in chapter 8 of MSCD, but until MSCD2 comes out, … [Read more...]

U.S. “Contract Drafting—Language & Layout” Seminars for Feb.–June 2008

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, VA April 3, Philadelphia, PA May 6, Atlanta, … [Read more...]

Quinn and Adams Article in the ACC Docket

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 have become available. I think it's pretty … [Read more...]

“May Require”

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 obligation: The Company may require a Participant to retain At the Company's written request, a … [Read more...]

Whether to Use Language of Discretion or Language of Prohibition to Express an Action that Is Subject to Consent

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 which party you represent? … [Read more...]

Yet More on Needless Elaboration

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 to tweak my definition by replacing the word "then" with "and," because the needless elaboration can occur … [Read more...]

“At Any Time”

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 extraneous whatever the context. In general English usage, if someone has discretion to … [Read more...]

Needless Symmetry?

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 services specified in ...," I don't need to add "and the Consultant hereby … [Read more...]

Giving Contract-Drafting Students a Taste of the Future

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. The first was a demo of … [Read more...]

“May … Only”

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 doing so it may consider only its own interests. This sentence is ambiguous. … [Read more...]

The Relationship Between Contract Drafting and Contract Law

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 post is my own analogy. As it might be of interest to readers of this … [Read more...]

“Termination for Convenience”

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 system shows that the phrase termination for convenience occurs … [Read more...]

A Reminder of the Benefits of a Course in Contract Drafting

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 for are very impressed with how clear my contracts are and how quickly I can draft them, without sacrificing … [Read more...]

“Material Breach”

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 material and material adverse change (the most recent being the third article in this … [Read more...]

Enforceability of Fax and Scanned Signature Pages

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 almost every state) seems to say that e-signatures are okay, … [Read more...]

“As Amended”

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 and October 2004. More specifically, what caught my eye was this post on the … [Read more...]

“Action or Proceeding”

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 of Pennsylvania or in any court of the … [Read more...]

docstoc? No Thanks!

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 users to upload their … [Read more...]