It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to [...]
Without any editorializing by me, here’s an extract from this article by Sathnam Sanghera in the Times Online: On the one hand, written agreements protect parties if things go wrong and provide a useful framework for engagement. But, on the other, drafting contracts slows business down—something Stephen Covey emphasises in The Speed of Trust: The [...]
[Updated 12:05 p.m. EST Feb. 24, 2010] Three variations on a closing theme: Does “Closing” Refer to a Process or a Moment in Time? Does closing mean the moment a transaction is consummated? Or does it refer to the process leading up to that moment, with contracts being finalized and signed, opinions being issued, and [...]
In this January 2008 blog post I noted that the requirements for what constitutes a “contract under seal” have been relaxed to the point of ludicrousness. But I also noted that in some states whether a contract is under seal has a bearing on which statute of limitations applies. From @Richards1000‘s prolific Twitter outpouring I [...]
Thanks to the Legal Writing Prof Blog, I learned of an article entitled “The Ethics of Contract Drafting.” It’s by Gregory M. Duhl, associate professor at William Mitchell College of Law. It will be appearing in the Lewis & Clark Law Review, but for those who can’t wait, it’s available on SSRN by clicking here. Here’s [...]
One of the chapters of MSCD that I sweated most over was chapter 10, “Ambiguity of the Part Versus the Whole.” Here’s the first paragraph: Use of plural nouns and the words and, or, every, each, and any can result in ambiguity. In each case, the question is whether it is a single member of [...]
[For a follow-up to this post, see this March 2, 2010 blog post.] I have in front of me a contract—it’s for the sale of goods—that contains the following provision excluding certain kinds of damages: Neither party will be responsible or held liable for any consequential, special, or incidental losses or damages. You can rely [...]
When it occurs in contracts (apart from its use in the phrase specific performance), more often than not the word specific serves no purpose. Consider the following examples, which I harvested at random from the SEC’s EDGAR system: Within 60 days following such request for a review, the Plan Administrator will, after providing a full and [...]
Longtime readers of this site will be familiar with the name Business Integrity, developer of ContractExpress (formerly DealBuilder) document-assembly software. Fixing contract drafting involves fixing not only language but also process, and fixing the process means using document assembly. So I’ve long had a keen interest in document assembly. About three years ago I became [...]
Here are some follow-up thoughts prompted by reader Chad’s comment to my recent post on use of the couplet fraud or intentional misrepresentation in indemnification provisions. Chad suggested that although fraud includes intentional misrepresentation, at least three state courts have treated the terms fraud and intentional misrepresentation as synonyms. That doesn’t worry me, because if you use in [...]
Today I came upon yet another article exploring law students’ lack of basic writing skills: Aïda M. Alaka, The Grammar Wars Come to Law School, 59 J. Legal Educ. 343 (2010). (Click here to go to a pdf copy.) Professor Alaka notes that “many, if not most, legal writing instructors have been surprised by the [...]
The other day a law-firm partner who specializes in M&A called me to discuss the terms fraud and intentional misrepresentation. He noted that it’s commonplace for both terms to be used in specifying exceptions to limits on indemnification. Here’s the sort of provision he was referring to (I haven’t attempted to clean it up): Notwithstanding [...]
The following is from this article by Drew Combs on the AmLaw Daily: Latham & Watkins and Manatt Phelps & Phillips are the targets of a malpractice lawsuit filed by ECC Capital Corp., which accuses the firms of botching a deal to sell its mortgage-origination business and a subprime-loan portfolio to Bear Stearns & Co. [...]
On the Law Technology News website is “The Law of Unintended E-Consequences,” an interesting article by Stanley P. Jaskiewicz, a member of the Philadelphia law firm of Spector Gadon & Rosen. It discusses how boilerplate that is easily skimmed over can end up acquiring unexpected significance. The article mentions me, but that’s not how it [...]
This from reader Chris Lemens: This bugs me. I see a lot of nondisclosure agreements. A typical definition of the information protected by such an agreement includes a notion that the information is “confidential or proprietary.” The “proprietary” part just seems wrong to me. So what if the information is owned as property? A company’s [...]
Last week I was at West’s headquarters in Eagan, Minnesota, with a dozen or so journalists and bloggers, attending a series of presentations on WestlawNext, the next generation of Westlaw. After some five years of development, it’s being launched today. Others who were in Eagan with me have already offered their thoughts on WestlawNext. I [...]
