Rethinking Waiver Provisions

Here's a standard waiver provision: Waiver. No provision in this agreement may be waived, except by means of a writing signed by the party against whom the waiver is sought to be enforced. I find such provisions very odd. Let's start by considering what a waiver is. There are two kinds of waiver: First, a contract might specify that Widgetco has to satisfy a condition before Acme can … [Read more...]

How to Introduce a Set of Autonomous Definitions

I'm going over one of my contract redrafts. Here's how I introduced a set of autonomous definitions: For purposes of this agreement, the following terms have the following meanings: You see this language, or some variation, in innumerable contracts. I'm not crazy about the way it groups the definitions, thereby leaving open the possibility that one defined term could have more than one … [Read more...]

More Signature-Automation Solutions

In this May 2007 post I wrote about the signature-automation tool EchoSign. And my ACC Docket article with Brian Quinn mentions DocuSign. Well, there are other fish in that particular sea. I noticed that The Connected Lawyer—always a source of interesting information—recently posted about one of them, ConXPoint. Another is Sertifi. I've corresponded with John Stojka, a co-founder of Sertifi. … [Read more...]

Waiver of the Statute of Limitations in “Survival” Provisions

In this July 2006 post I said that although it's standard to refer to "survival" of representations, it's unhelpful to do so. I quoted language that I find much clearer. Well, it would seem that both the traditional language and my preferred language were found wanting in a 2007 case applying California law that I saw mentioned in the ABA Section of Business Law's "Annual Survey of Judicial … [Read more...]

More on the Cerberus Litigation

In February, the New York Law Journal published my article about the litigation between Cerberus and United Rentals. If you're hungry for more on the subject, check out this article in the American Lawyer. I make a brief guest-appearance. … [Read more...]

Lexicon—A Tool for Organizing and Checking Defined Terms

One frustrating aspect of my self-appointed role as freewheeling contract-drafting guy is that I'm not involved, day in and day out, in drafting contracts. As a result, I don't have occasion to gain hands-on experience with the nifty information-technology tools that are now available to help the drafter. I wrote about a bunch of them in my ACC Docket article with Brian Quinn, but I just … [Read more...]

Attorneys Signing Contracts?

Victoria Pynchon—she of the Settle It Now Negotiation Blog—asked me the following question: While I was practicing, it was common for the opposition to put signature lines on settlement agreements for the attorneys' signatures. I always refused to sign these, saying, "I'm not a party to this contract and I don't think my signature adds anything to it." Now, on several occasions, I've been asked … [Read more...]

When an “Indemnified Party” Isn’t an Indemnified Party

It’s been a couple of months since I looked through recent opinions. It’s time for me to get back into the habit of doing so, because all sorts of interesting issues crop up. Consider Moore v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 30480 (N.D. Miss. Mar. 31, 2008). It bears on how you create the defined term Indemnified Party. The Case This case involved a personal-injury action … [Read more...]

“Change in Control” or “Change of Control”?

Here's another issues that cropped up during my Geneva seminars: Which is preferable, change in control or change of control? My instinct was that both usages are equally acceptable, and that was borne out by five minutes of research. Contracts filed on the SEC's EDGAR system don't seem to display a marked preferance for one usage over the other. And change in control yielded 406,000 Google … [Read more...]

Schedules— “On” or “In”?

During one of my Geneva seminars this week, someone asked me whether it's better to say listed/described/stated in schedule X or on schedule X. I'd been asked this question a couple of times previously, and I'd responded that I wasn't sure that I cared. But on being asked a third time, it dawned on me that no question of usage is too small to address rigorously. So here goes: As usual, what … [Read more...]

Last Call for Geneva

On Friday I'll be heading for Geneva, where I'll be giving a series of public seminars from April 21 through April 25. Click here for more information. If you want to explore the language of contracts in the company of a few like-minded people, these seminars would provide an unmatched opportunity. … [Read more...]

“Dated for Reference”

I often come away from a seminar having learned something new. For example, a participant at my recent Vancouver seminar asked me what I thought of the phrase dated for reference, as used in the introductory clause. I confessed that I hadn’t previously encountered it. After I arrived home, I searched on Lexis for use of the phrase in the “material contracts” filed on the SEC’s EDGAR … [Read more...]

When an Individual’s Address Doesn’t Work for Purposes of the Introductory Clause

I don't include in the introductory clause the address of a party that's a legal entity. That's because the introductory clause serves to distinguish a given party from any other person or entity with that name. For a legal entity, that's accomplished by giving its jurisdiction of organization or its registration number; you don't also need its address. Party addresses might be included in a … [Read more...]

44 Hours in Bahrain

I'm now home after a whirlwind visit to Bahrain. I arrived from Oman on Wednesday afternoon, did a seminar on Thursday, then left on Friday morning. The seminar was under the auspices of the ABA's Rule of Law Initiative. My chaperones were James MacPherson and John Porter, who has just replaced James as the ABA’s resident advisor in Bahrain. The seminar was hosted by the Judicial & Legal … [Read more...]

MSCD2—Update on Proofreading

Ah, the glamorous life of the contract nerd! Vancouver one week! Oman and Bahrain the next! Philadelphia in between! But more mundane work goes on: I spent my first day in Oman in my hotel room, working on the manuscript for MSCD2. Thanks to the valiant efforts of the all-volunteer AdamsDrafting proofreading irregulars, it's in great shape. They spotted perhaps sixty glitches (missing words, … [Read more...]

I Heart Canada

How do I love Canada? Let me count the ways: It was a Canadian organization—Osgoode Professional Developement—that asked me to do my first public seminar. Attendance at my seminars in the U.S. with West Legalworks can fluctuate wildly, but my Osgoode seminars in Toronto sell out. (The next one is on June 16.) And last week 60 people attended my first Vancouver seminar with Osgoode. Every … [Read more...]

Greetings from Oman!

This post comes to you from Muscat, Oman. I'm here under the auspices of the Rule of Law Initiative of the American Bar Association, at the request of the Sultanate of Oman Ministry of Legal Affairs. Yesterday I held my "Language and Layout" seminar for a team of Ministry lawyers responsible for reviewing and drafting contracts that agencies of the Omani government enter into. Given the … [Read more...]