Enumerated Clauses—When the Trunk Is Too Short for the Branch

It's generally a bad sign when, barely after it begins, a sentence shifts into a set of enumerated clauses: If (1) A, (2), B, or (3) C, then X. Acme shall (1) A, (2) B, and (3) C. In such sentences, the drafter is forcing the reader to make a connection between each enumerated clause and the stub beginning of the sentence. In the first example, it would be better to incorporate the stub into … [Read more...]

Don’t Use “Immediately” for Things that Happen Automatically

MSCD 12.258–277 discusses the distinction—or not—between immediately and promptly. Here's another aspect of immediately—it's often misused in connection with stuff that happens automatically. Consider the following provision: This agreement will terminate immediately upon Acme’s giving Widgetco notice of termination. I've stricken the immediately because it suggests, inappropriately, that a … [Read more...]

In-House Seminars in London, January 2009?

After a long absence, I'll be in London over the holidays, visiting family and giving my daughter a brief introduction to the land where I spent fifteen years before sloping off to law school in the U.S. I had planned on returning to the U.S. early in January, but I find myself discussing with clients the possibility of giving in-house seminars at their London offices. That prompted the … [Read more...]

Ambiguity in Specifying the Time of Day

Reader Matthew pointed out to me an ambiguity I hadn't thought of. Here's the language at issue: If the Escrow Agent receives from the Seller a Counter Notice before 2:00 p.m. on the date that is 20 Business Days after the Escrow Agent received the corresponding Claim Notice, the Claim must be resolved in accordance with section X. Matthew was concerned that this could be read in two ways: … [Read more...]

Details of 2009 Seminar Dates Now Online

I've updated the public seminars page with information about the U.S. "Language and Layout" seminars I'll be giving with West Legalworks in the first half of 2009. In the next few days I'll update the West Legalworks banner links with the same information. … [Read more...]

Defined Terms for the Components of a Transaction

I've been urging my Penn Law students to curb their tendency to create more defined terms than a given contract requires. That led to one of my students sending me the following message regarding our final assignment, the Penn Law redrafting project: Dear Professor Adams, I just took a look at your version of assignment 5. It seems to me that I still don't have the defined-term … [Read more...]

More on Using Words and Numerals to Express Numbers

Most drafters use words and numerals to express numbers—as in no later than thirty (30) days after Acme delivers a Termination Notice. Numerals are easier to read than words but are more prone to typographic errors, so using both affords the immediacy of numerals while providing insurance against a transposed decimal point or an extra or missing digit. Courts are apt to apply the rule of … [Read more...]

Choosing Among Alternative Categories of Contract Language

When in my "Language & Layout" seminars we discuss categories of contract language, I emphasize that in addressing a given issue one sometimes has a choice as to which category of contract language to use, but that one will work better than any other. I encountered an example of that today. Consider the following provisions: Acme may terminate this agreement by giving Widgetco notice of … [Read more...]

“Shall” Versus “Will” in Business Contracts—An Exchange of Emails

[Updated March 2, 2015: For my most recent take on this subject, see this article.] I've previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article. But it's such a fundamental topic that it bears revisiting … [Read more...]

Thoughts on PLI’s Drafting Program

In a recent email exchange, a corporate partner at one of the big law firms told me that he wasn’t sure how my "Language and Layout" seminar differs from the Practicing Law Institute's day-long program on contract drafting. So when last week a flyer for that program—"Drafting Corporate Agreements 2009"—arrived in the mail, I made a point of checking it out to see whether we cover the same turf. We … [Read more...]

Nicknames for Contract Provisions

Thinking about materiality-scrape provisions had me pondering idly what other contract provisions are known by nicknames. Only three came to mind—ipso facto clauses, anti-sandbagging provisions, and "garden leave" clauses. A lame effort by yours truly. There are doubtless plenty other such nicknames out there. I invite you, dear reader, to tell us any you can think of. The only rule is that a … [Read more...]

The Structure of M&A Contracts—Materiality-Scrape Provisions

Wearing my "structure of M&A contracts" hat, this week I revisited a relatively recent addition to indemnification provisions in acquisition agreements—the "materiality scrape" provision. (What a charming moniker—it brings to mind scraping muck off the sole of one's shoe.) In particular, I read a couple of useful articles, one by a team of lawyers at Goodwin Procter (click here for a copy), … [Read more...]

Adams ABA-Panel Doubleheader

Later this month I'll be on two ABA panels on consecutive days. First, I'll be on the panel for a November 20 ABA-CLE webcast entitled "Getting the Business Deal into the Contract." It's an encore performance of a panel discussion held at the ABA's 2008 annual meeting. The other members of the panel are Tina Stark, executive director of the Emory Center for Transactional Law and Practice at … [Read more...]

Drafting Guru, Anyone?

With publication of the second edition of A Manual of Style for Contract Drafting, I've been taking stock. I roam the land giving public and in-house seminars. I teach at a great law school. And I get to explore and write pioneering stuff about a vital yet problematic activity—contract drafting. I love what I do, and I feel tremendously lucky to be doing it. But it doesn't occupy all my … [Read more...]

“Asserts”—Revisiting “Represents and Warrants” Once More

Longtime readers of this blog will be aware of my hostility towards the phrase represents and warrants (and representations and warranties). Over the weekend I was reminded that I don’t include in the MSCD discussion (starting at 12.285) a point I make in my seminars. Here it is: The only purpose that Acme represents and warrants serves is to indicate that Acme is making a factual assertion. … [Read more...]

“I Don’t Always Agree With You …”

Every so often someone says to me, in connection with MSCD, "I don’t always agree with you." My ears prick up when I hear that. It suggests to me three possibilities: The speaker has spotted flaws in my analysis. The speaker misguidedly regards contract drafting as a craft, with the drafter being free to select at will from an array of different but equally valid usages. The speaker … [Read more...]

“Can” and “Cannot”

If you've perused chapter 2 of MSCD (Categories of Contract Language), you're aware that I have a mania for disciplined use of verbs in contracts. But I haven't previously had occasion to discuss use of can and cannot; I'll do so now. The word can is used to express physical or mental ability, as in he can open beer bottles with his teeth. In contracts one occasionally sees can used … [Read more...]

What Does One Do If a Signature Date Is Omitted?

One topic we discuss at my "Language and Layout" seminars is when it's appropriate to have signatories date their signatures, as opposed to relying on the date stated in the introductory clause. (This is discussed in MSCD at 1.16–21 and 4.3–7.) In a couple of recent seminars I was asked what one does if, in a contract that provides for dated signatures, a signatory fails to date their … [Read more...]