Thanks to reader Steven Sholk, I learned that the U.S. Supreme Court recently considered the “ordinary meaning” of the words because of. Here’s how the CCH Workday blog described the issue: Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute’s requirement that an [...]
You can find plenty of discussion online, at Above the Law and elsewhere, of the new “apprenticeship” model of first-year-associatedom at a handful of law firms. I suggest that such firms have a choice: either they’re going to give their apprentices the same old training, just more of it, or they’re going to use their [...]
Methinks forthwith has as a fusty, moldy air about it. I wasn’t surprised to see it included, along with the likes of hither and mayhap, in this list of quaintly archaic words. But lo and behold, forthwith was used in 502 contracts filed in the past month on the SEC’s EDGAR system, as compared with [...]
Today the Law Shucks blog posted this item about a former IBM executive, David L. Johnson, who is claiming that his noncompetition agreement with IBM is unenforceable. One element of his defense is that he signed the contract in the space where IBM was supposed to sign. According to Bloomberg: Johnson told Robinson he signed the [...]
In this comment to a previous post, reader Mark Anderson expressed a preference for saying that parties are obliged to do something, rather than obligated. He suggested that use of the verb obligate is the result of the noun obligation being pressed into service as a verb. Here’s the opening paragraph of what A Dictionary [...]
In the course of considering, for purposes of today’s post on time is of the essence, how contracts are drafted in Quebec, I came across an oddity of the sort that I wouldn’t have expected to encounter in contract language—an instance of “false friends,” in other words pairs of words in two different languages that [...]
At the 2008 ABA annual meeting I appeared on a panel with Kevin Kyte, partner at the Montreal office of Stikeman Elliott. Kevin’s topic was things to bear in mind when drafting contracts governed by the law of a civil-law jurisdiction. It’s a topic I haven’t seen addressed in print, so I permit myself to [...]
I received the following cry of despair from a Canadian reader: I’m preparing a partnership agreement and have been given precedent to work with. Using MSCD, I have spent some time trying to rework the precedent’s archaic language to make it more readable. It says, several times, “Each of the Partners severally represents, warrants, covenants [...]
I’ve recently seen and heard references to companies offshoring the task of drafting contracts. For example, this article in today’s London Times says that Rio Tinto has hired a team of Indian lawyers “to work for it on tasks such as reviewing documents and drafting contracts.” If that means having your offshore lawyers handle hundreds [...]
Recently I wanted to find out more about use of expert testimony to resolve contract ambiguity. (Remember, ambiguity arises when a contract provision is capable of expressing two or more inconsistent meanings.) So I consulted Walter R. Lancaster & Damian D. Capozzola, Expert Witnesses in Civil Trials. I learned that “it remains a basis for [...]
It seems as if every couple of months I find out about another company that’s somehow involved in the contract-automation business. Yesterday I learned about Drawloop. It offers general document-automation services, including automation of routine sales contracts, presumably using mail-merge type functionality. That seems like a sensible niche, one that offers high volume without the complications [...]
Yesterday saw the first broadcast, in a “live” session, of part 1 of my new webcast series “Drafting Clearer Contracts.” The topic was the front and back of the contract. Because I had prerecorded the webcast, the broadcast was a zero-stress affair. Consistent with the live format, I was on hand afterwards to reply in [...]
I’ve previously written about whether to use stockholder or shareholder; see MSDC 12.336 and this blog post. (I say it doesn’t matter which you use.) Here’s a related issue that’s just as thrilling: should you say shareholders’ agreement, with an apostrophe, or shareholders agreement, without the apostrophe? (Obviously the same debate applies to stockholders’ agreement.) [...]
In contracts, addresses occur in the notices provision. And if a contract doesn’t include a notices provision, usually I’ll include in the introductory clause the address of any individual that’s a party, so as to distinguish that individual from anyone else with the same name; see MSCD 1.49. But some addresses are more dependable than [...]
Can astute contract drafting can forestall all contract disputes? No, it cannot. Most contract disputes, sure. But not all. For example, vagueness is an essential tool for the contract drafter, as often the future is too uncertain to allow you to be precise. But being vague leaves room for future dispute. And often parties rationally [...]
I’ve recently become acquainted with a specialized form of contract language—architectural specifications, which are attached to construction contracts and define the requirements for products, materials, and workmanship on which the contract is based and requirements for project administration and performance. My entrée to this field was Andrew Wilson, whose business, AWC West, prepares custom-tailored architectural [...]
This Mace & Jones “Education Update” alerted me to the recent English case of KG Bominflot Bunkergesellschaft fur Mineralole MBH & Co KG v Petroplus Marketing AG (2009). Here’s the gist of it: The buyers purchased from the sellers fuel oil that tested OK before shipping but was found to be unsatisfactory on arrival. The [...]
Each of my webcasts—or rather the first five, solo webcasts—consists of a narrated and annotated PowerPoint presentation. That sounds simple enough, but it’s not the norm in the webcast world. Webcasts for the most part consist of phoned-in audio or talking-head video. If there’s a PowerPoint presentation, the audience is invited to view it on-screen [...]
In contracts and elsewhere, it’s standard to refer to remediation of environmental contamination. It’s also standard to use the verb remediate to refer to the act of remediation. Garner’s Modern American Usage isn’t fond of remediate: remediate, a back-formation from remediation, is either a needless variant of remedy or a piece of gobbledygook. E.g.: “The [...]
For the heck of it, every so often I search “contract drafting” on Twitter. A few times I’ve been pleasantly surprised to spot a mention of my book. Once someone who evidently was then in one of my seminars tweeted that the seminar wasn’t as much fun as her dinner with an old friend the [...]
Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.) The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas [...]
In an item posted today on the (new) legal writer, Ray Ward says the following: Right now I’m reading a long list of definitions in a bankruptcy plan of reorganization, and I just came across this one: “‘SpiritBank’ means SpiritBank.” As definitions go, that’s pretty lame. I’m sure you, dear reader, have seen other examples [...]
