My New “Drafting Clearer Contracts” Video Webcasts with West LegalEdcenter; Sponsorship by Business Integrity

[Updated June 4, 2009] I'm pleased to announce that starting June 11, I'll be offering through West LegalEdcenter a series of seven video webcasts entitled "Drafting Clearer Contracts." Each webcast will be an hour long. They'll be rolled out one by one through the second half of July. Five of the webcasts will explore topics discussed in my book A Manual of Style for Contract Drafting and … [Read more...]

The Meaning of “Draft”

How come one drafts a contact but writes a letter? The verb draft has a number of possible meanings, but here's what the Oxford English Dictionary—the bound version, not the online version—gives as the one definition relating to preparing documents: "To make a draft or rough copy of (a document); to draw up in preliminary form, which may be afterwards perfected." That's OK as far as it goes, … [Read more...]

Playing Games With the Date Next to the Signature

Having parties to a contract date their signatures makes sense when there's a lag time between when the first party signs and the last party signs. And some auditors are requiring that their clients use dated signatures in all their contracts. But dating signatures can be a nuisance. As I noted in this November 2008 blog post, one problem is that parties sometimes return signed signature pages … [Read more...]

Perspectives: Chris Rowley of Vinson & Elkins

The interviews I’ve done on this blog have been about technologies relevant to the contract process or have explored some narrow topic that I’m particularly interested in. What’s been missing is interviews in which people who work with contracts discuss issues relevant to them. Here’s the first such interview; I’ll be doing others every so often, all under the rubric … [Read more...]

Keep This Stuff Out of Your Contracts

Black-and-white is simpler than shades of gray—the most straightforward MSCD recommendations are those urging you to scrap entirely a given word or phrase. Here's a partial list of words and phrases that ideally would be absent from your contracts: at no time best efforts covenant for the avoidance of doubt hereinafter referred to as including but not limited to including without … [Read more...]

Why No Contract-Process Value Challenge?

Legal OnRamp, the online forum for in-house counsel and invited outside lawyers and vendors, has announced the "FMC Technologies 1° Law Litigation Value Challenge." It's a beauty contest for law firms interested in doing FMC's litigation work. I suppose what distinguishes it from the run-of-the-mill beauty contest is that Legal OnRamp represents a particulary public platform. And for all I … [Read more...]

Vancouver Seminar on May 28

On Thursday, May 28, I'm giving my all-day "Contract Drafting—Language and Layout" seminar in Vancouver, BC, under the auspices of Osgoode Professional Development. Click here for more information. I did my first public seminars with Osgoode Professional Development, and my Toronto seminars with them have been, in all respects, a resounding success. So I'm eager to have the Vancouver seminar be … [Read more...]

Using “States” Instead of “Represents and Warrants”

In MSCD 12.285–315 I explain why it's pointless and confusing to say represents and warrants, not to mention representations and warranties. No one has made a serious attempt to refute my argument. But recently I received an interesting report from the front lines. Knowing that I have a thing about represents and warrants, Trevor Grant of the Canadian law firm Miller Thomson let me know that in … [Read more...]

Redundancy in Governing-Law Provisions

[You might also want to read this September 2009 post in which I refine my thinking on "arising out of" and "relating to".] A Canadian law firm recently shared with me its draft "boilerplate" template. On reading it, I saw that the law firm recommends that its lawyers use the following language in any governing-law provisions (I've omitted the bit excluding conflicts-of-law principles, as … [Read more...]

Revisiting “Indemnify and Hold Harmless”

[Updated April 17, 2013: For my more recent take on this, see this July 2012 post.] In MSCD 12.134 and in these blog posts, I recommend that you rid your contracts of the phrase indemnify and hold harmless. Most lawyers unthinkingly use indemnify and hold harmless as synonyms. And I've found that lawyers who instead think those concepts can be distinguished don't agree on what they actually … [Read more...]

When a Written Contract Is Preceded by Oral Agreement

It's commonplace for performance to begin before a contract has been signed, with the contract being signed once all necessary approvals have been secured. MSCD 1.32 recommends that in such contexts, you put in the introductory clause the date the contract is signed, rather than the date performance began. (That assumes you're using a date in the introductory clause rather than dating the … [Read more...]

Initialing Each Page of a Contract

Here's what I understand of the practice of having those signing a contract also initial each page of the contract: It's commonplace in wills, apparently as a check against substitution of pages. It's required by statute in the case of some contracts. For example, under Ohio Revised Code 1349.55, each page of a contract providing for a non-recourse civil litigation advance must be initialed … [Read more...]

On Seeing an Ambiguous “Or” in a Toronto Handwashing Notice

While in Toronto last week I couldn't help but admire, from the standpoint of graphic design and engaged municipal government, the timely yellow-and-white notice about handwashing that was posted in all restrooms. But those who attend my seminars will be aware that the one subject that has had me in a cold sweat more than any other is the ambiguity associated with and and or. The result is that … [Read more...]

Revising a Contract After It Has Been Signed

At my Osgoode Professional Development workshop in Toronto last week, a participant helpfully mentioned a recent English case in which the court held that transferring the signature on an incomplete draft deed or contract to a final version wouldn't be effective if the changes made were so significant that the final version was arguably a different document. The following is from an account of … [Read more...]

“Executed as a Deed”

While researching the implications of the word deed (see today's blog post on deed), I encountered a contract with the following concluding clause: THIS AGREEMENT has been duly executed as a Deed on the date stated at the beginning of this Agreement. The phrase executed as a deed also occurs in signature blocks. A variant is signed as a deed. A quick search of the SEC's EDGAR system suggests … [Read more...]

“Deed”

MSCD 12.148 and this May 2007 blog post consider the word indenture. Well, here's another word for a particular kind of contract: deed. Black's Law Dictionary defines deed as "A written instrument by which land is conveyed" and "At common law, any written instrument that is signed, sealed, and delivered and that conveys some interest in property." There are many varieties of deed—deed of trust, … [Read more...]