How Useful Is MSCD in Canada and Other Jurisdictions Outside the U.S.?

John Gillies, director of practice support at the Toronto law firm Cassels Brock, spoke on contract drafting at a conference put on by the Ontario Bar Association last week. He was kind enough to send me the paper he had prepared. John is no stranger to what I do. For one thing, I've conducted a couple of seminars at Cassels Brock, and I'm pleased that I'll be visiting them again later this … [Read more...]

A Gripping Issue of Notice-Provision Terminology: “Telecopier,” “Facsimile,” or “Fax”?

Every issue of contract language, no matter how minor, is worth addressing correctly. And some readers have clearly embraced that approach. For example, I received the following note from reader David Baghdassarian, an associate at K&L Gates: Have you opined on use of the word "telecopier" instead of "facsimile" (or "fax")? I believe "telecopier" was Xerox's brand name for an early fax … [Read more...]

Adams Featured in Article in Financial Times

Click here to go to it. (You may need to register, without charge.) This is the first time I've gotten any real coverage outside of legal periodicals. I hope it's a sign of increasing interest in clearer contracts in general and my approach in particular. Any thoughts? … [Read more...]

Automating Template Creation and Document Benchmarking: Q&A with Kingsley Martin, CEO of KIIAC

Through the contract-automation grapevine I heard about Kingsley Martin, president of KIIAC LLC, a company using proprietary software to help customers analyze contract models. Kingsley was kind enough to speak with me about KIIAC and show me how the software works. It's sophisticated and intuitive, and I think it meets a real need, so I was happy to turn my conversation with Kingsley into the … [Read more...]

Speaking at DELVACCA Conference

On April 1 I'll be in Philadelphia, speaking at the first conference for in-house counsel organized by DELVACCA, the Delaware Valley chapter of the Association for Corporate Counsel. Some three hundred in-house lawyers are expected to attend this all-day CLE event, but it's almost sold out, so you'll have to be quick if you want to join them. It's free to DELVACCA  members who register by March … [Read more...]

Contract Lifecycle Management: A Q&A with Harry Angel of Symfact

I've written before about contract-lifecycle-management (CLM) software. (Click here for some general thoughts on CLM; the ACC Docket article I co-authored also discusses CLM.) I'm pleased that this post allows me to revisit the topic. During a trip to Switzerland a couple of years ago I met Chris Craddock, the marketing director of Symfact, an increasingly prominent CLM vendor. Thereafter it was, … [Read more...]

Using and Defining “Subsidiary”

I was prompted to consider the word subsidiary when I realized that it's not necessarily clear what kind of entities can be a subsidiary. And I stuck around to consider how one might define subsidiary. What Kind of Entities? The main problem with subsidiary is that it can create confusion regarding what kind of entities can be a subsidiary. Let's consider first a relatively easy case, the … [Read more...]

Lexical Ambiguity: What Does “Offshore” Mean?

Jones v. Francis Drilling Fluids, 2009 U.S. Dist. LEXIS 21388 (Mar. 17, 2008 S.D. Tex.), concerns a worker injured while working on a floating drill barge rig located in inland waters. He had been working for Francis Drilling, which had been working as a contractor for ADTI under a master services agreement (MSA). And ADTI had been providing turnkey drilling services to TODCO. The worker sued … [Read more...]

Use of “Spouse” in Business Contracts

Reader Jonathan Handel—he of the Digital Media Law Blog—sent me the following interesting inquiry: I'm wondering if you have any thoughts in regards to a gay rights issue related to drafting various corporate documents. This question may be on the edge as to whether it's a drafting issue or a substantive one, but I figured I'd ask your thoughts. In any case, the issue is this: the concept of … [Read more...]

Businesspeople as Drafters and Reviewers of Contracts

I recently leafed through Business Contracts: Turn Any Business Contract to Your Advantage (Entrepreneur Press 2007). The publisher was kind enough to send me a review copy. It's by Laura Plimpton, a lawyer. As the title suggests, it aims to help businesspeople get to grips with contracts. In just under 200 pages, Plimpton discusses a broad range of contract issues. An appendix contains a … [Read more...]

Right and Wrong in Drafting Usages

Someone who does a lot of presentations to law firms recommended to me that when I field comments from the audience, I should avoid suggesting that I'm right and the speaker is wrong. I understand his point; after all, the customer is, in a larger sense, always right. But I find it hard to be too easygoing. Because contract language regulates conduct, it's more limited and stylized than … [Read more...]

Presenting Contract Text in Full and in Bullet Points

Longtime reader D.C. Toedt pointed out to me this post on The Consumerist. It applauds the terms of use of a company called Aviary, in that it offers, in bullet points set out to the right of the full version of the terms of use, a plain-English summary of the provisions. (Click here to go to Aviary's terms of use.) I think that approach is a dubious one, in that it violates a basic rule of … [Read more...]

“Latent Ambiguity” Is a Confusing Concept

This post isn't intended for drafters so much as judges and litigators. In a recent bankruptcy case, In re IdleAire Technologies Corp., 2009 Bankr. LEXIS 343 (Bankr. D. Del. Feb. 18, 2009), the court had the following to say about "latent ambiguity": The plain language of an insurance policy, however, can also be ambiguous, even when there is only one reasonable interpretation of the … [Read more...]

Verb Use in the Introductory Clause

Yesterday I got a call from a reader inquiring about verb use in my recommended form of introductory clause. I love that kind of inquiry. More specifically, he pointed to the introductory clause in MSCD sample 1. It begins as follows: This asset purchase agreement is dated May 3, 2008, and is between ... He wondered whether it would be more economical to say instead This asset purchase … [Read more...]

Some MSCD Testimonials

I've belatedly updated the testimonials on the MSCD page of this site. To spare you having to click on the link, I've copied the testimonials below. I thank all those who were kind enough to provide testimonials. I have a particular soft spot for the one that potential MSCD readers are least likely to pay attention to, namely the one from Geoff Pullum. Geoff has very good naturedly tolerated my … [Read more...]

“Best Efforts” Under Canadian Law

In connection with one of my Calgary seminars, someone suggest that my treatment of best efforts doesn't apply in Canada. I thought I should address that, because if my analysis doesn't work for Canada, it doesn't work anywhere. Chapter 7 of MSCD contains my analysis of efforts provisions, and I've also done a good number of blog posts on the subject. The gist of my analysis is that as a matter … [Read more...]

How Not to State the Deadline for Submitting a Bid or Taking Any Other Contract Action

A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you're likely going to be early or late, to a lesser or greater extent. That's because any given time of day isn't a period of time, but simply the boundary between blocks of time. For example, 9:00 a.m. is the boundary between … [Read more...]

More on “Time Is of the Essence”

Drafters use the phrase time is of the essence to indicate that failure to meet a contract deadline constitutes grounds for termination. But as I explain in MSCD 12.394–403 and in this May 2006 blog post, saying Time is of the essence for purposes of this agreement is problematic, in that such provisions suggest that the draconian termination-for-any-tardiness standard applies to all contract … [Read more...]

Notes on a Week in Calgary

I'm at the tail end of a productive week spent in Calgary. Last Thursday I gave a seminar for Petro-Canada and its outside counsel, Fraser Milner Casgrain. On Friday I gave a lunchtime presentation for the Canadian Bar Association Alberta. And today, I gave a seminar for the law department of Enbridge Pipelines. Based on preliminary feedback, those who attended found these sessions useful. And … [Read more...]

Addressing All Eventualities in Contract Procedures

A recent Texas case, XTO Energy, Inc. v. Smith Production, Inc., 2009 WL 442003, No. 14-07-00069-CV (Tex. App. Hous., Feb. 24, 2009), shows why it's a good idea to be excruciatingly comprehensive when specifying in a contract the procedures to be followed when the parties make important decisions. Appellee Smith was an operator under two joint operating agreements (JOAs) governing exploration … [Read more...]