License-Granting Language Is Just Another Contract Provision

Yesterday I revisited the question of the relationship between a license and the contract that grants the license. This issue arose in connection with a trademark license agreement I've been redrafting. The original version says that the license is "nonassignable," and I've been contemplating deleting that adjective on the grounds that the question of assignment of the license would be covered … [Read more...]

“Shall Never”

Today I encountered shall never in a contract. I think it's a form of rhetorical emphasis—you're saying the same thing as shall not, but you're also banging your shoe on the table. So I never say shall never. … [Read more...]

“Product” and “Units of Product”

I was reminded today how the word product can be a nuisance when drafting, for example, a license agreement providing for a royalty based on products sold. Product can be used to refer to a product line, with its own SKU, or it can mean individual samples of a product line. I use the defined term the Product for the former meaning and refer to units of the Product for the latter. Anyone have any … [Read more...]

Why Bother Learning to Draft Contracts More Clearly?

In my recent blog post about how BigLaw associates have thus far been immune to the charms of my West seminars (click here), I offered some reasons as to why that might be the case. But I omitted one possible reason—that learning how to draft contracts ranks low one's list of priorities. My thanks to commenter Damon for showing me a different perspective. Here's what he had to say in a comment … [Read more...]

The Not-So-Mysterious Dearth of BigLaw Associates at My Public Seminars

On November 17 I'll be giving a West LegalEdcenter seminar in New York. I suspect that although I'll be in the densest BigLaw cluster in the land, BigLaw associates will be underrepresented at the seminar, as compared to company counsel and contracts professionals. And that's been pretty much the case at all my U.S. seminars. (My seminars in Canada are a different matter.) My only reason for … [Read more...]

More Syntactic Ambiguity

The ever-alert Steven Sholk has informed me of another legal opinion discussing syntactic ambiguity. This one was issued by the Tenth Circuit Court of Appeals and addresses how much of a provision in an insurance policy was modified by a closing modifier. (Click here for a copy of the opinion.) I'm not particularly interested in what the court held, because my goal as a drafter is to avoid … [Read more...]

“Remit” and “Remittance”

The words remit and remittance occur relatively often in contracts. Black's Law Dictionary gives as one definition of remit "To transmit (as money) (upon receiving the demand letter, she promptly remitted the amount due)." And here's how it defines remittance: "1. A sum of money sent to another as payment for goods or services. 2. An instrument (such as a check) used for sending money. 3. The … [Read more...]

Drafting Without Punctuation?

A participant at my recent seminar in Ottawa reminded me of something I'd never paid much attention to—the idea that one should draft without punctuation. It's a hoary old notion that still lingers in Commonwealth jurisdictions. Here's what an Australian text has to say on the subject (footnotes omitted): Traditional legal drafting uses punctuation sparingly. This has been the practice from the … [Read more...]

“Hereby Grants” or “Hereby Grants To”?

Warning: grammar nerdiness ahead. In license agreements I see the following two alternative constructions: Acme hereby grants Widgetco a license to ... Acme hereby grants to Widgetco a license to ... The second alternative represents the inferior choice. Consider the following sentences: I gave John a book. I gave a book to John. *I gave to John a book. The first sentence matches … [Read more...]

“To Not” or “Not To”?

Sometimes one encounters in contract drafting issues that are of broader relevance. In MSCD, discussion of such issues is grouped in chapter 16, and on this blog they're grouped in the category "Drafting as Writing." I encountered one such issue yesterday, when I received the following email from a reader: I was wondering whether there is any difference in meaning between (A) "opt not to … [Read more...]

“Addendum”

Someone recently asked me what I thought of using the word addendum in connection with contracts. I'm not crazy about it. Black's Law Dictionary defines addendum as "Something to be added, esp. to a document; a supplement." So an addendum adds something to a contract, but it's not clear whether you're amending or supplementing the contract. (MSCD 17.10 discusses the distinction between amending … [Read more...]