“Because” and Causation Issues in Contracts

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 adverse employment action was taken … [Read more...]

Training Your “Apprentices” in Contract Drafting

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 new programs as an occasion to rethink their processes. Here's how it might … [Read more...]

“Forthwith”—A Quaint Archaism

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 1704 contracts using a more sensible word, promptly. Lawyers, quaintly archaic? Say it ain't … [Read more...]

Questionable Defense of the Month: “I Signed the Contract in the Wrong Place”

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 agreement on the space where IBM was supposed to sign because he … [Read more...]

“Obligate” v. “Oblige”

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 of Modern Legal Usage has to say on the subject: oblige; obligate. The … [Read more...]

A Contract-Language French-English “False Friend”

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 sound similar but have different meanings. Anglophones in Quebec routinely use … [Read more...]

Enforceability of “Time Is of the Essence” Provisions in Civil-Law Jurisdictions

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 bug Kevin sporadically. Yesterday I followed up with him regarding his assertion, during our … [Read more...]

“Represents, Warrants, Covenants and Agrees”

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 and agrees with each other Partner that such Partner … [Read more...]

Having Your Contracts Drafted Offshore—Do You Really Want to Do That?

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 of equipment-lease deals by revising an approved set of … [Read more...]

Expert Testimony and Ambiguity

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 objection [to expert testimony] that the testimony … [Read more...]

Drawloop—Automation of Routine Sales Contracts

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 … [Read more...]

Part 1 of the “Drafting Clearer Contracts” Webcast Series Launched

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 writing to questions submitted. As regards turnout, West thought the numbers … [Read more...]

Apostrophe in “Shareholders Agreement”?

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.) Note that if each … [Read more...]

Addresses That Aren’t So Dependable

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 others. Reader Chris Lemens recently shared with me an … [Read more...]

Is Uncertainty Over the Meaning of “Occurrence” Susceptible to a Drafting Solution?

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 elect to punt on a given issue—they elect not to address it in … [Read more...]

Use of the Imperative Mood in Architectural Specifications

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 … [Read more...]

A Recent English Commercial-Law Decision on Waiver Language

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 buyers claimed, among other things, that under section 14(2) of the … [Read more...]

Two PowerPoint-Related Technologies Behind My Webcasts

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 or print it out, then go through the slides … [Read more...]

“Remediate” v. “Remedy”

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 evidence suggested that there was … [Read more...]

“is there anything more boring than drafting a contract?”

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 previous evening. No surprise there—I aim to be moderately engaging, but there's a limit to what I can … [Read more...]