When Adding “Material” to a Representation, Which Noun Should You Modify?

Over the years I've written about materiality a number of times. The discussion in MSCD represents my most recent take, but I'm revisiting the subject for purposes of my forthcoming booklet on the structure of M&A contracts. While finalizing the booklet—a task that has taken me away from blogging—I've found myself considering an issue that I haven't previously addressed head-on. Below is the … [Read more...]

Watch Out for Metadata

I don't exchange drafts with people on the other side of a transaction, so generally I don't have to worry about metadata. But if unlike me you actually do deals, you should be attuned to the risks of metadata and how to stay out of trouble. So you might want to read a new article on the subject by law-technology guy Nerino Petro and Bryan Sims of The Connected Lawyer blog; click here to go to … [Read more...]

Next Stop on the Canada Tour: Halifax, NS

Under the auspices of my Canada partner Osgoode Professional Development, I've done public seminars not only in Toronto but also Vancouver, Calgary, and Ottawa. Next up is Halifax on September 22, with another in Toronto on November 3; for more information, click here. And the plan is to go to Montreal for the first time in early 2011. I suspect we'll limit ourselves to those cities, but who … [Read more...]

Blog Civility: How Am I Doing?

I just received the following broadside from a reader: You choose to use your blog to tout your own book and for self-validation. I certainly hope you are not deceiving yourself that your purpose is to foster discussion or refine your own body of knowledge. That's fine, each to his own, I just wonder why you have the comments turned on. Because you so enjoy taking potshots at anyone who begs to … [Read more...]

An Online Test of Contract-Language Proficiency?

Recently I've been pondering whether I should put together an online multiple-choice test that would allow users to assess their command of MSCD-compliant contract language. It would be a simple enough matter to come up with fifty to 100 questions; each would offer an explanation that cites the relevant discussion in MSCD. Users would pay a modest fee to take the test. But do you think anyone … [Read more...]

Another Article on ContractExpress

I've written previously about ContractExpress, the document-assembly software developed by my partner and sponsor, Business Integrity. (See this February 2010 blog post for my Q&A with Andy Wishart, CTO of Business Integrity.) If you'd like to see what someone else has to say about the "cloud" version of ContractExpress, check out this Law Technology News article by Sean Doherty. (I had the … [Read more...]


A reader asked me what I think about therefor. Here's my equivocal answer: In MSCD 12.99 I note that here- and there- words such as herein and thereunder are dreary legalese. That's why I use in this agreement instead of herein. But sometimes, a there- word allows you to avoid long-winded repetition. Looking more closely at therefor suggests another wrinkle to there- words. In most cases, … [Read more...]

Airing a Slogan for a Make-Believe Ad Campaign

If I were at the helm of a well-funded trade group called "The Association of Contract-Drafting Professionals" (yeah, right) and we were rolling out an advertising campaign, here's what I might use as a slogan: Contract language is specialized. Leave it to specialists. Here's the idea behind it: Contract language is akin to software code—it's limited and stylized. Just as being a user of … [Read more...]

“Best Efforts” Under Canadian Law: Once More, With Feeling

If you want to do business in the marketplace of ideas, you have to be prepared to repeat yourself, and you should be willing to engage in good-natured debate. So here goes: I noticed that a recent newsletter issued by the Canadian law firm Fraser Milner Casgrain contains an article on that favorite topic, the meaning of various efforts standards. (Click here for a PDF copy.) The article is by … [Read more...]

The Connection Between Contract Drafting and Negotiation

I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it. Here's the relevant part of Vickie's comment: I've been devising a negotiation class for transactional lawyers with a transactional attorney/negotiation professor in … [Read more...]

Revisiting the Meaning of “Closing”

[Revised July 24, 2010 to (1) revise the meaning of Closing so that it means the same thing as Effective Time, (2) eliminate the defined term Effective Time, and (3) create the defined term Filing Date.] In this February 2010 blog post I said that the word closing is ambiguous: Does closing mean the moment a transaction is consummated? Or does it refer to the process leading up to that moment, … [Read more...]

Drafting a Contract Provision That Tells Only Part of the Story

I'm familiar with the ethics-in-drafting implications of including in a contract a provision that's invalid. This topic is explored in Gregory M. Duhl's article "The Ethics of Contract Drafting," which I mentioned in this February 2010 blog post. A provision can be invalid because it's illegal. Gregory's article gives as an example of an invalid clause a provision that disclaims the implied … [Read more...]