November 11, 2008 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 name for a given provision doesn’t count as a nickname if any element of the nickname appears in the language of the provision, including the heading. So, for example, “further assurances” and “merger” provisions don’t make the cut, and neither does “10b-5 representation.”
November 11, 2008 at 8:42 pm
What about MFN?
One that comes to mind: “ratchet” provisions.
November 11, 2008 at 9:38 pm
Evergreen clauses.
I tried to think of others… too late in the day. :)
November 12, 2008 at 12:49 am
Himalaya Clause cf. http://en.wikipedia.org/wiki/Himalaya_clause
November 12, 2008 at 4:11 am
“No poach”, the nicknames for various deadlock resolution clauses (often, it seems, ending “shoot out”), “Romalpa” (for ROT) all come to mind.
November 12, 2008 at 5:40 am
Green shoe option, and blue sky provision (paralleling “blue sky” laws). Also, tag/drag-along, shotgun, Russian roulette, Dutch auction, and no-shop clauses…
November 12, 2008 at 9:34 am
standstill, drop dead, blue pencil (severability), further to James’s no-shop is the newer go-shop, poison pill (although that’s usually an entire agreement in itself), big boy (each party has been represented by counsel… not the big boy letter)
November 12, 2008 at 10:57 am
Hell-or-High-Water clauses…
November 12, 2008 at 7:56 pm
Ken –
Someone beat me to it on “evergreen clauses”, which I have additionally named the “fat and happy clause” as I believe it leads tp parties so seemingly contented with their relationship that they don’t spend time to revisit and potentially improve it.
And for good measure I’ll add “sunset provision” and “most favored nation” clause.
November 12, 2008 at 8:08 pm
Fitz: Goldman beat you to what he termed “MFN”. Ken
November 12, 2008 at 9:43 pm
How about the “Jane Austen” Clauses:- Term and Termination? regards, Alan
November 13, 2008 at 6:09 am
K4K, also known as “knock for knock”, e.g., a reciprocal indemnity clause in which each party assumes the risk of loss, bodily injury or property damage to his people and property, even if caused by the other party’s sole negligence.
November 13, 2008 at 9:24 am
Cluases invoking the parol evidence rule are variously called “merger clauses,” “integration clauses,” and “zipper cluases.”
November 13, 2008 at 10:06 am
Flow-down and pass-through clauses (in subcontracts)
November 13, 2008 at 11:22 am
The “Kathie Lee” provision refers to an anti-sweatshop clause.
November 13, 2008 at 1:50 pm
I’m surprised nobody mentioned “basket clause,” the one that purports to deal with all the things the drafters forgot to deal with (of which a classic example, perhaps, is the Ninth Amendment to the Constitution).
November 14, 2008 at 5:54 pm
The only rule is that a name for a given provision doesn’t count as a nickname if any element of the nickname appears in the language of the provision
That rule would disqualify “materiality-scrape”.
November 14, 2008 at 6:16 pm
Joe: I guess you got me! But because it’s such a funky name, I’m granting it an exemption … Ken
December 8, 2008 at 4:59 am
Gag Clauses