The “Amendment” Section and Categories of Contract Language

Once you're attuned to my framework of "categories of contract language," as laid out in chapter 2 of MSCD, you'll see its implications at every turn. A big part of my recent article on the AAA standard arbitration clause (pdf here) was a discussion of categories of contract language. The boilerplate governing how contracts are amended raises a similar issue. Here's what a text on contract … [Read more...]

Kingsley Martin’s “Contract Analysis and Contract Standards” Blog (Plus Discussion of Document-Assembly Technology)

In March 2009 I did this Q&A with Kingsley Martin, developer of KIIAC, a software for creating templates and clause libraries for use in drafting contracts. I continue to think that KIIAC is invaluable for anyone looking to create a new template from a large group of comparable precedent contracts, so it was with interest that I noted that Kingsley has just started the "Contract Analysis and … [Read more...]

Free Time in Calgary on Wednesday, April 28

I'll be in Calgary the week of April 26, in part for my "Drafting Clearer Contracts" public seminar for Osgoode Professional Development. (Click here for more information about that.) But what's currently on my mind is that I'm free on Wednesday, April 28, until mid-afternoon. Hmm, time for a 3-hour or 4.5-hour seminar, methinks. If you'd like to find out more, get in touch. … [Read more...]

Some BigLaw In-House-Seminar Testimonials

I've been remiss about asking my in-house-seminar clients for testimonials, and I resolved to fix that. Last week I was in Houston, and I'm pleased to have received the following testimonials (my thanks to Lori and Tim): Ken Adams has continually presented a great “Drafting Clearer Contracts” training program for our associates. His sessions are extremely clear and organized and participants … [Read more...]

Arising Out of What?

Here's yet another cautionary tale. This article on Lexology by Doug Batey of Stoel Rives LLP considers a recent Idaho Supreme Court opinion addressing a dispute over a fee-shifting provision in a limited-liability-company operating agreement. Here's the contract provision at issue: In any action or proceeding brought to enforce any provision of this Agreement, or where any provision is … [Read more...]

How Not to Specify Jurisdiction, Part Deux

As a follow-up to this recent post, let me tell you about another opinion featuring a dispute over a jurisdiction provision. (My thanks to the indefatigable Steven H. Sholk for the lead.) The case is D.B. Zwirn & Co. v. Dittman, No. 09 Civ. 10498 (S.D.N.Y. filed Mar. 23, 2010) (click here to go to a pdf copy). At issue was the following language: The Company may bring an action or special … [Read more...]

AdamsDrafting Incentive Program: If You Adopt an MSCD-Based Contract-Drafting House Style, I’ll Help You Out

Winning hearts and minds one contracts person at a time is a noble undertaking, but things certainly would go faster if I could convert entire organizations. For any organization looking to put its contract process on a more efficient footing, the first step would be to adopt a rigorous house style. Compiling a dozen pages or so of guidance of your own would represent progress, but perhaps of a … [Read more...]

Inertia and Law Departments: It’s Not Only Law Firms That Have a Problem with Change

I noticed that in their current "Question of the Week," the ABA Journal is asking who is better equipped to promote change, law firms or their clients. I won't attempt to answer that. But I'll note that although most of the chatter on change in the legal profession seems to assume that clients will be dragging law firms into the twenty-first century, my own sense is that when it comes to the … [Read more...]

Reminder: MSCD Works Outside the U.S.

In the course of telling someone in Canada where they could buy my book, I visited the MSCD page on, Amazon's Canada storefront. In addition to noticing that doesn't itself sell the book (buy it instead from, I saw that one "Mary M." had recently posted a review. It's positive, but it includes the following: The only "downside" for non-American lawyers is that it's … [Read more...]

Arrogance as a Response to Change

The other day while reading in the Atlantic Monthy "A Conversation with Jules Feiffer," the great cartoonist, the following Feiffer observation caught my eye: Amidst all the insecurity, and the ambition, and determination, there are two things always at work. One is self doubt, and the other is arrogance. And they work hand in hand. That reminded me that change leads to uncertainty, and … [Read more...]

“Terms and Conditions”

A particularly prevalent usage is terms and conditions (and the shorthand T&Cs). Heck, it even surfaces in the everyday world—I've been known to throw a slipper at the TV when, at the end of a car ad, some voiceover guy drones on about how "terms, conditions, and limitations apply." You can always do better than terms and conditions. Sometimes, as in the following uncleaned-up examples, … [Read more...]

An AdamsDrafting Mini-Exhibit of Contract-Drafting Art: Recent Illustrations by Russell Christian

Contrary to reputation, I'm not just a dry-as-dust, express-the-meaning-of-the-parties guy. I have a sensitive, truth-and-beauty side too. And to demonstrate that, I now bring you—cue tasteful music—the first AdamsDrafting art exhibit! It showcases the work of Russell Christian, a talented illustrator. And it was made possible by that noted patron of the arts, Business Integrity, developer of … [Read more...]

How Not to Specify Jurisdiction

I generally explain the concept of ambiguity by saying that if reasonable people read a given contract provision and derive different meanings from it, that provision is ambiguous. But that doesn't quite capture the problem that alternative meanings pose for the contract drafter. It's not only the reasonable reader that you're worried about. Instead, you're worried about anyone, reasonable or … [Read more...]

Upgrades and Fixes to this Site

I launched this site in 2006, and recently it's been showing its age. That's not entirely due to sloth on my part, as getting anything adjusted had become a protracted annoyance. So recently I engaged web designer Tom Leadbetter, and here's what we did: The left-hand column is wider, to take into account that people have been migrating to wider monitors. I added a new "Press" page (under … [Read more...]

Working with Contracts If You Aren’t a Native English Speaker: Some Notes from All Over

I'm attuned to the particular challenges facing anyone who isn't a native English speaker and is required to draft or negotiate contracts in English. Indeed, my site contains this note on the subject. I was recently reminded of this issue in a number of ways. First, I exchanged emails with a reader in Asia. Here's what he said, in part: We operate at a level of mediocrity in Asia (including … [Read more...]

My NYLJ Article Critiquing the AAA Standard Arbitration Clause

Today's issue of the New York Law Journal contains my article "The AAA Standard Arbitration Clause: Room for Improvement." Click here to go to a pdf copy. (It's also available here if you subscribe to the New York Law Journal.) It was fun to write, and here's why: I got to revisit a topic, arising out of or relating to, that I've worried at inconclusively in several blog posts. The … [Read more...]

Negotiating Around the Duty of Good Faith

In this May 2007 blog post I mentioned the dispute between Crusader Entertainment and schlockmeister Clive Cussler. In this post, the ContractsProf Blog provides the latest installment in this gripping saga—an opinion by a California appellate court. Here's the bit that caught my eye: On the key issue in the appeal, the court found that Cussler had a contractual right to review and reject … [Read more...]

Adding General Terms to a Stand-Alone Purchase Order

My recent post on stand-alone purchase orders prompted a related thought: When you issue a stand-alone purchase order (in other words, one not issued under a master contract), you could incorporate the general terms (in other words, everything that doesn’t relate to deal-specific matters such as product and price) in different ways. You could include them with the purchase order, you could park … [Read more...]

Tacking an Acknowledgment on to the End of a Contract

You sometimes see a contract that has a paragraph entitled "Acknowledgement" added at the end, after the party signatures. For example, a search on the SEC's EDGAR system quickly retrieved this document, a "forebearance agreement and amendment to indenture" between Gulfstream International Group, Inc. and Shelter Island Opportunity Fund, LLC. Here's what came after their signature … [Read more...]

Comparing General Terms in a Master Contract and General Terms in a Stand-Alone Purchase Order

I received the following inquiry from a reader: As you know, goods or services can be purchased by means of purchase orders issued under a master contract or by POs that aren't issued under a master contract—I'll refer to the latter as "stand-alone" POs. They can be issued for one-off purchases or on a regular basis as part of an ongoing relationship. When you have a master contract, the … [Read more...]