Reader Michael Fleming informed me of US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 U.S. Dist. LEXIS 10841 (D. Minn. Feb. 11, 2008). This case serves as a reminder that a court would likely conclude that if Smith promises to purchase widgets from you, you’ve in effect also promised to supply widgets [...]
Here’s a quick way to save three words: instead of saying in accordance with the terms [or provisions] of section 6, say simply in accordance with section 6.
Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view: When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to [...]
As I noted in this post, from April 21 through April 25 I’ll be giving my “Contract Drafting—Language and Layout” seminar at the Geneva, Switzerland offices of Hogan & Hartson. Well, I’ve now upgraded the registration system. For one thing, you can now pay by credit card, if you wish. To go to the registration [...]
Bylaws is spelled both with and without a hyphen. For example, Black’s Law Dictionary gives a definition for bylaw but notes that it’s sometimes spelled by-law. So which is preferable? It appears that bylaw is gaining the upper hand. For example, the 1915 edition of Robert’s Rules of Order Revised used by-laws but the current [...]
In a recent post I suggested that accurate is a “less dopey” alternative to true and correct. (Yes, I know, I too thought that an impressive turn of phrase.) That led a reader to suggest to me that complete and accurate is preferable to accurate. Presumably he had in mind that if you give me [...]
I suggest that for purposes of contract drafting, you can always do without automatically. Consider the following fragment: … and each January 1 thereafter, this agreement will be automatically extended for one additional year unless not later than … I suggest that eliminating the word automatically wouldn’t affect the meaning. The same goes for automatically [...]
Perhaps because they’re aware that I’ve had occasion to consider punctuation, some readers contacted me about the February 18 New York Times article about use of a semicolon in a New York City Transit subway placard. Here’s the one thought that came to mind: In contracts, I use semicolons between integrated enumerated clauses when they’re [...]
I’m pleased to announce that from Monday, April 21, through Friday, April 25, I’ll be giving five consecutive one-day seminars on “Contract Drafting—Language and Layout” at the Geneva, Switzerland offices of the global law firm Hogan & Hartson. All are welcome to register. The seminars are being supported by ACC Europe and by the International [...]
Today’s issue of the New York Law Journal contains my article on the recent litigation between Cerberus and United Rentals. Click here to go to a PDF copy. It’s also available at the NYLJ website if you’re a subscriber.
A couple of days ago reader David Munn—ever vigilant against the forces of contract-drafting darkness—sent me the following: I couldn’t find that you had blogged on one of my pet peeves, which is the overuse of the word “respective,” as in “All capitalized terms that are used but not defined in this SOW have the [...]
In the past year, 265 contracts filed as “material contracts” on the SEC’s EDGAR database contained a provision stating that the recitals were true and accurate. Here’s an example: The above recitals are hereby made a part of this Agreement and the Borrower acknowledges and agrees that each of the recitals is true and correct. [...]
Kevin O’Keefe’s Real Lawyers Have Blogs has posted a Q&A with yours truly. Click here to go to it.
I received the following from reader Nigel Madeley, of the U.K. law firm Addleshaw Goddard: Ken, I know this one raises your blood pressure a little. A case about nuisance by vibration—an adjoining occupier sought an injunction against a developer. The injunction was awarded. The developer had to keep to agreed vibration limits; if it [...]
Avoid the prefixes bi- and semi- for purposes of references to time—they’re confusing. Bimonthly means “every two months” and semimonthly means “every half-month,” in other words “twice a month.” Biweekly and semiweekly reflect the same distinction. But biannual and semiannual both mean “occurring twice a year,” whereas biennial means “occurring once every two years.” So [...]
What’s wrong with this picture: “Subsidiary” includes only any company in which the applicable entity, directly or indirectly, has a beneficial ownership interest of greater than 50 percent. Well, includes only equates to means— what includes gives, only takes away. So use instead means.
Reader Steven Sholk of the Gibbons law firm alerted me to the February 6 decision by the Mississippi Supreme Court in Barbour v. Mississippi ex rel. Hood. Click here for a copy of the opinion. Steven had been alerted to this case by Rick Hasen of the Election Law blog. This case involves a squabble [...]
Here’s yet another issue regarding the introductory clause that I haven’t previously written about: How, if at all, should you address in the introductory clause the fact that performance under the contract will be by a division of a company? You could ignore it. After all, the company will be on the hook, not the [...]
A couple of days ago I received from a reader an email that included the following: I’ve got a question about the use of apostrophes in notice period provisions. I was rather surprised to see that section 8.96 of the MSCD includes apostrophes after the number of days/weeks/months in your example provisions. Shouldn’t such provisions [...]
As I mentioned previously, Alliance Data Systems and Blackstone Group are in litigation over Blackstone’s proposed acquisition of ADS. More specifically, ADS has filed a complaint alleging that Blackstone breached its obligations under the merger agreement by failing to use its “reasonable best efforts” to obtain the approval of the Office of the Comptroller of [...]
Quick—what’s the difference between promptly and immediately? I bet that what comes to mind is the notion that immediately requires speedier action that does promptly. Well, if that’s what you thought, you’re in good company. For example, the District Court for the Southern District of New York has said that promptly doesn’t mean immediately, but [...]
This post on use of all capitals in contracts—it’s from Legal Frontier, Andrew Mitton’s blog—reminded me of a question that I’ve asked myself occasionally. The Legal Frontier post is about how use of all capitals makes contract text harder to read. That wouldn’t come as a surprise to anyone who pays the slightest attention to [...]
A few months ago someone at a public company mentioned to me that her department was about to embark on a redraft of their templates. I was familiar with the subject matter, so I knew that the templates must be complex. I recently checked in with her to see how the process was going. In [...]
