The Contracts Guy Reviews the Third Edition of MSCD

Brian Rogers, also known as @theContractsGuy, has reviewed the third edition of A Manual of Style for Contract Drafting. Go here to read it. I'm delighted that Brian thought it worthwhile to go through the old-fashioned work involved in writing a book review. No reviewer want to write a puff piece, and Brian is no exception. Although his review is certainly positive, he echoes Mark Anderson's … [Read more...]

Examining a Recommended Governing-Law Provision

An article in Corporate Counsel by a BigLaw partner and associate (copy here) considers governing-law provisions. It suggests that using the following provision would increase the odds of a court's holding that the provision applies to claims other than claims under the contract: This contract shall be governed and construed in accordance with the laws of [selected State], excluding that State’s … [Read more...]

How to Fix Your Templates: A Heart-to-Heart Conversation

Oh, hi! It's you! Do come in. Please take a seat. Would you like some tea? Water? No? OK. Thank you for coming. I'd like to have a chat. It's about your template contracts. It's hard to say this gently: they're not good. Your company is a substantial one. You do business all over the world. Your numbers have lots of zeroes after them. But your templates are painfully amateurish. They … [Read more...]

Redraft This Sentence, MSCD Style

This morning I encountered the following sentence on EDGAR: Therefore, the obligations of the Sellers under this Agreement, including, without limitation, the Sellers' obligation to sell the Shares to the Purchaser, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection … [Read more...]

You Can’t Focus on Just “Important” Stuff

Seminar customers will sometimes ask me, in effect, to focus on the important stuff. I respond that it wouldn't make sense to have me do that. Take, for example, my "categories of contract language" analysis. Sure, some of the distinctions are more important than others. A prime example is the distinction between obligations and conditions. But that distinction would be harder to make sense of … [Read more...]

Encouraging Outside Counsel to Improve Their Contract Drafting

You're an in-house lawyer who consults A Manual of Style for Contract Drafting. In fact, it's widely used in your department—your company does its best to produce contracts that are clear, modern, and effective. But for your outside counsel, it's business as usual—when you ask them to prepare a contract, they give you traditional contract language. Well, if you have any pull with them, you … [Read more...]

“Ready, Willing, and Able”

The earnest cliché ready, willing, and able occurred in 102 contracts filed on the SEC's EDGAR system in the past year. That's not a whole lot, but it's not nothing either. Here are some examples: Borrower and Bank recognize and agree that the Origination Fee ... is a material inducement for Bank to make the Loan and for having Bank ready, willing and able to fund the Loan in accordance with the … [Read more...]

A Justice of the Minnesota Supreme Court Might Want to Consider the Rhetorical Function of “Best”

Last month the Minnesota Supreme Court issued its opinion in In re Petition of S.G., 828 N.W.2d 118 (Minn. 2013) (PDF copy here). This opinion doesn't involve a contract dispute. Instead, what caught my eye is what is, to my mind, a misunderstanding on the part of the judge writing the concurring opinion. Why bother pointing it out? Because it's a misunderstanding that rears its heading when … [Read more...]

Advice to a Non-Native English Speaker (Including Links to My Analysis of Different Boilerplate Provisions)

Here's the text of an email I just sent someone who attended one of my recent European seminars: I’m pleased that you found the seminar worthwhile. So you’re looking for further training that will allow you to get more comfortable with contracts drafted in English. You also want to understand better the sorts of provisions that are standard in commercial contracts. The Building Blocks of … [Read more...]

Save the Date: New 2013 Canada “Drafting Clearer Contracts” Seminars

I've scheduled two new Canada "Drafting Clearer Contracts" public seminars for Osgoode Professional Development: Calgary, October 24, 2013 Toronto, November 6, 2013 I'll put additional information online as soon as it's available. And things are looking good for my first-ever OPD seminar in Montreal in early 2014. Cela serait génial! … [Read more...]

Severability and Tabulation

At one of my recent European seminars I told the participants that I'm not in favor of the approach to document design that says that as soon as you have two distinct thoughts in a contract provision you should enumerate them and tabulate them. (For more about that, see this 2013 post (eighth paragraph) and this 2012 post.) But, said one of the participants, under English law doesn't … [Read more...]

Fundraiser for Phillips Academy Andover: Auction of One Lot of Ten Copies of “A Manual of Style for Contract Drafting”

[Updated May 2, 2013: Well, my readership has proved immune to the attractions of half off ten copies of MSCD. Tough crowd! Anyway, thank you for indulging me in this experiment.] I'm offering up for auction one lot of ten print copies of the third edition of A Manual of Style for Contract Drafting. I'll be paying all proceeds to the Parent Fund of Phillips Academy Andover, the school that my … [Read more...]

My New Offering: A One-Hour Presentation

I've updated this site's page on my in-house seminars to note that I'm now offering a one-hour presentation entitled "The Bad (and Good) News About Contract Language and the Contract Process." Here's the description: In addition to his seminars, Ken offers a one-hour  presentation on problems with traditional contract language and the traditional contract process and how organizations can address … [Read more...]

Footnotes in Contracts?

A few days ago a reader asked me about a recommendation he saw online to the effect that it might be a good idea to use a footnote to explain why a negotiated contract provision had been written in a particular way. And another reader just asked me about using footnotes in a contract. Someone in his company had proposed including a footnote to elaborate on the meaning of a particular word. I … [Read more...]

Reputation Matters

In modern discourse, it's increasingly important not just to be right, but to be seen to be right. There's no shortage of people offering, online, debatable interpretations of contract-drafting issues. And every few weeks, another questionable analysis is added to the pile. That increases the clamor in the marketplace of ideas, with the result that it's harder to distinguish good ideas from the … [Read more...]

Lame Word of the Day: “Utmost”

Utmost? WTF! Here are some examples of use of utmost in contracts on EDGAR: ... provided that the party so affected shall use its best efforts to avoid or remove the cause(s) of non-performance and observance with utmost dispatch. A Seller's agent or subagent has the following affirmative obligations: (1) To the Seller. A fiduciary duty of utmost care, integrity, honesty, and loyalty in … [Read more...]

“Because”

I noted with interest Neal Goldfarb's recent post on LAWnLinguistics about an amicus brief that he filed with the U.S. Supreme Court. His brief concerns the word because, and here's the gist of the issue addressed: In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the … [Read more...]

Notes from the Road: Hamburg

I’ve just left Hamburg after a three-day visit. Some thoughts: I held public seminars on Monday and Tuesday at the offices of ECE Projektmanagement, the shopping-center developer. My host was the exceedingly gracious Joachim Kämpf, of ECE’s legal department. He’s a veteran of one of my 2012 Geneva seminars. Last Sunday, Joachim gave me a walking tour of downtown Hamburg. As has often … [Read more...]

Issue Spotting an Aspect of Jane Doe’s Employment Agreement

You've been asked by Acme to draft an employment  agreement for Jane Doe, Acme's new head of sales. As part of his muttered instructions to you, Roger Roe, Acme's general counsel, says, "Oh, and Jane should work out of our Budapest office a couple of months a year." It's a simple idea, but some issues spring to mind. Allow me to share them with you, simply as an example of issue … [Read more...]

“Confirms”

You see confirms used to introduce statements of fact in a contract. Here are two examples from EDGAR: Each Loan Party (i) confirms that prior to, as of, during and following the funding of the Commitment, each Loan Party was not, and continues not to be, "insolvent" as that term is defined in Section 101(32) of the United States Bankruptcy Code, ... . Each party hereto hereby acknowledges … [Read more...]