The phrases “mere condition” and “mere covenant” (and the latter phrase’s more modern equivalent, “mere obligation”) occur quite often in caselaw, as well as in the literature on contract law. A search of Lexis’s “Federal & State Cases, Combined” database found 940, 536, and 353 instances, respectively, of those phrases. But those phrases, and analogues using “merely,” make [...]
MSCD 16.29–31 deals with “rhetorical emphasis.” That’s the term I use to describe language you shovel into a contract provision to show that you really, really mean it. Every so often I encounter new examples of rhetorical emphasis. (See for example this August 2008 blog post about in all respects.) Here’s another symptom of rhetorical [...]
Parsing redundancy in contract language can get old, because it comes in endless shape-shifting forms. But a fundamental and intriguing kind of redundancy involves conjunctions. It’s high time that I consider unless and until. It features prominently in contract language. For example, 842 “material contracts” filed on the SEC’s EDGAR system in the past month use [...]
In December 2007 I underwent a Damascene conversion and switched typefaces—for purposes of contracts and pretty much everything else—to Calibri, one of a new suite of Microsoft typefaces. Calibri has been designated the default typeface for body text in Office 2007, and the Word 2007 default font for body text is 11-point Calibri. (Click here for [...]
The Conglomerate Blog has been running an interesting series of posts on the theme of “Minding our own business: How changes in the business of law might affect law schools and what law professors should be doing about it.” The most recent one is here, and is by Michelle Harner, associate professor at the University [...]
In this item on his blog, the inestimable Ron Friedmann ponders the extent to which an “open source” approach to work product would save time and money for law departments. Here’s how Ron frames his thought experiment: So assume that confidentiality, privilege, and competitive issues matter not, that law departments contributed a significant portion of [...]
West LegalEdcenter has added a Silicon Valley date to my 2010 U.S. slate of public “Drafting Clearer Contracts” seminars. It will be on December 9, at the Network Meeting Center at TechMart, 5201 Great America Parkway, Santa Clara, California. For more information, go here. If you’d like to take advantage of my being in the [...]
David Munn, general counsel of contracts intelligence company Pramata Corporation and longtime friend of this blog, recently alerted me to some mystery contract language. Here’s the text of a question he posted on a couple of online forums of the Association for Corporate Counsel, to no avail: I’m reviewing some proposed website terms of use [...]
If all goes according to plan, in a few months I’ll be publishing with West, as a pdf download, my booklet “The Structure of M&A Contracts.” And I’ll also be doing with West a new webcast with the same title; an M&A “name” has already agreed to join me as co-presenter. Here are the opening three [...]
In the course of rooting around online, I encountered this 2007 analysis by Morris, Manning & Martin of a Georgia Court of Appeals case, Covington Square Associates, LLC v. Ingles Markets, Inc., 283 Ga.App. 307, 641 S.E.2d 266 (Ga. Ct. App. 2007) [pdf]. Better late than never, let’s look at this case. It involves a [...]
I’ve found myself using increasingly often on this blog the phrase “magic words,” so I thought it high time that I explain, to myself and anyone else interested, what I mean by that phrase. It’s in widespread use in legal circles—a search of Westlaw’s “tp-all” database retrieved over 3,500 items that refer to “magic words.” [...]
The “Newsroom” feature of the University of Pennsylvania Law School’s website contains this item about the redrafting project my class worked on last semester—we redrafted the Breast Cancer Research Foundation’s trademark license agreement. For the fall 2010 redrafting project, I’d like to work once more with a not-for-profit organization, this time one that works on [...]
Judges and commentators have long fulminated against and/or. One particularly irate judge—perhaps spittle-flecked, with neck veins bulging—referred to it as “that befuddling, nameless thing, that Janus-faced monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he [...]
The recent Lawyers Weekly article that I linked to in a previous post contains the following: The phrase “sole and exclusive license,” for example, is common yet contradictory. “Sole,” on the one hand, means only one person has the legal right to use the product. “Exclusive,” however, actually means only one other person has that [...]
An M&A-lawyer boogeyman is “double materiality,” which ostensibly arises when a materiality qualification is included in the bringdown condition to one party’s obligation to close, as well as in one or more representations made by the other party. The concern is that double materiality could mean that even though a seller representation qualified by materiality [...]
This article by Donalee Moulton in the current issue of the Canadian periodical The Lawyers Weekly considers what’s involved in making contracts clearer. Yours truly makes a brief appearance. If you’re interested, by clicking here you can get on SSRN a copy of the Gelpern and Gulati article mentioned in the Lawyers Weekly piece.
In this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of retaining drafts of a contract.) Well, last week brought further news in this saga, as a federal jury found that two key Unix copyrights belonged to Novell and not to SCO. (Click here for [...]
[Updated April 6, 2010: Another resource is this recent Law Technology News article on document assembly. Not that it says anything earthshattering.] The comments to last Tuesday’s post about Kingsley Martin’s new blog veered unexpectedly into a detailed discussion of document-assembly technologies. That got me to thinking that it might not be a bad idea for [...]
Regular readers of this blog will know that I’m committed to drafting contracts in standard English—English as spoken and written by the average educated native English speaker. But sometimes, nothing can take the place of that olde-worlde lingo. An important example of that is forsooth, meaning “in truth,” “indeed.” It’s all well and good to [...]
