Via this IP Draughts post, we learn that another English court has held that if a set of statements of fact is introduced by warrants, those statements of fact do not also constitute representations giving rise to a claim for damages under the Misrepresentation Act 1967. Mark notes that this opinion is of limited interest, as it involves only a hearing of an application for summary judgment, … [Read more...]
Archives for July 2016
Revisiting How to Express Termination with Prior Notice
I love it when after writing about a usage and describing it as awkward, I'm able to demonstrate that it's not only awkward, it can also lead to fights. Today's example of that is my December 2015 post about how to express termination with prior notice (here). Today a reader emailed me as follows: Suppose a termination provision of a contract reads, “After August 1, 2016, either party may … [Read more...]
“Including at Least”
This week a reader asked me about including at least—yet another phrase I'd never thought about before. That phrase is unobjectionable when it's used to express that a given set must including a minimum number, or minimum proportion, of something or other. Here are some random examples from EDGAR: … the Parties shall refer such dispute to the Chief Executive Officer of CG and the Chief … [Read more...]
Save the Date: London, 8 November, Panel Discussion on Contract Drafting
I'm delighted that on Tuesday, 8 November 2016, from 18:00 to 19:30, you will find me at the UCL Events Pavillion, Main Quad, Gower Street, London WC1. That's because I'll be taking part in a panel discussion hosted by UCL Faculty of Laws entitled Dysfunction in Contract Drafting: Are the Courts, Law Firms, and Company Law Departments Stuck in a Rut? It will be free of charge. I'll be in town … [Read more...]
Glenn West on the “Why” of Contract Drafting
Via @lisasolomon I learned of a new piece by Glenn West. It's entitled Contract Drafting 101: A Checklist Derived from Recent Caselaw, and it forms part of the materials for a course for in-house counsel offered on 10 August 2016 by the State Bar of Texas. It's available here. For information about the course, go here. In this piece, Glenn considers recent caselaw that illustrates why certain … [Read more...]
Yet Another “Efforts” Standard: “Good Efforts”!
Longtime readers will know that I make it a point periodically to prod the carcass that is the notion that different efforts standards impose obligations of different levels of onerousness. Well, it's time to prod the carcass once more. This morning I used the phrase good reason. That led me to ponder the rhetorical function of good in that phrase—what's the difference between doing something … [Read more...]
On “This Agreement” and Sweating the Small Stuff
You're a client. I give you my redraft of one of your templates. We discuss my version. During those discussions, you ask that I restore the capital A to this agreement. Here's what MSCD 2.110–.110 says about that: It’s common practice to create in the introductory clause the defined term this Agreement. … But this defined term is unnecessary: the definite article this in references to this … [Read more...]
The Endless Inefficiency of M&A Drafting
You might find of interest The Inefficient Evolution of Merger Agreements, a law-review article by two law-school professors, Robert Anderson and Jeffrey Manns. (You can get a PDF copy here.) The authors did something that is still relatively novel when it comes to study of contract drafting—they engaged in empirical research. Specifically, they used computer textual analysis to analyze 12,000 … [Read more...]
The UK Is Designing Government Contracts for the Digital Age
My post on contracting by the US states (here) prompted @CherylStephens to inform me on Twitter of this post from a couple of days ago on the UK government blog Digital Marketplace. It's by Jason Waterman from the Crown Commercial Service and Warren Smith from Government Digital Service, and it's entitled Working together to design government contracts for the digital age. It's commendable, and … [Read more...]
State Contracting Needs Help
I noted with interest this article on problems with Virginia's contracting system. I'll take the liberty of quoting most of it: Virginia’s $6 billion-a-year contracting system has serious flaws — including multi-million dollar contracts managed by untrained staff and contracts that are prepared without legal review, according to a new state report issued Monday. The General Assembly’s … [Read more...]
Update on My “Advanced” Categories-of-Contract-Language Seminar
My core seminar is the "Drafting Clearer Contracts" seminar. I've been doing it for, oh, eleven years, as both public and in-house seminars. I do more of them with each passing year. It's humming along nicely. I've also started doing another seminar. The marketing materials describe it as "advanced," but the more specific part of the title is "An Intensive Program in the Categories of Contract … [Read more...]
Defining “Knowledge” to Include What Someone Should Have Known
Starting at 13.364, MSCD considers the elements that go into a definition of the defined term Knowledge. One element that discussion doesn't include is the possibility of Knowledge being defined to include information that the person in question should have known. That's knows as "constructive knowledge," and it features in the following definitions exhumed from the potter's field … [Read more...]
“Aforesaid” and “Aforementioned”
You recall my recent post about the foregoing (here)? Well, suppress your gag reflex and meet its close relatives, aforesaid and aforementioned. The word aforesaid comes in two flavors. First, it occurs in the phrase as aforesaid: Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first … [Read more...]
Spare Us the Legalistic BS: I Respond to an Item on “Above the Law”
Last Friday I noticed this post on Above the Law. It's by Stefan Savic, an associate at the law firm Balestriere Fariello. The title is Legalese: Won’t Do With It, Can’t Do Without It. According to Savic, traditional contract legalese is impenetrable. He says that although lawyers have been encouraged to use plain English, "the day-to-day legal universe has been slow to move away from archaic … [Read more...]
Fine-Tuning LexCheck (Featuring “Promptly”)
In this post I reminded you all that I’m involved with LexCheck, the contract-checking software. Part of the challenge in developing LexCheck has been determining what we tell the software to do. For one thing, I’m acutely aware that there’s a difference between your electing to consult A Manual of Style for Contract Drafting and my blog posts and my in effect whispering in your ear as … [Read more...]
An Update on LexCheck, the Contract-Checking Software
[Updated 4 April 2018: I'm no longer an advisor to LexCheck (formerly Lit IQ), and the last time I did any work for them was in 2016.] You know the 1950s movie Forbidden Planet. No? You should check it out—it’s an odd mix of retro camp and legit eeriness. In any event, the plot of the movie involves—spoiler alert!—technology that’s a manifestation of one of the characters. That reminds me of … [Read more...]
“Is Permitted”
There's no end to the suboptimal alternatives to may. Here's another—is permitted. You see is permitted to when a party is the subject of the sentence or clause: … Sponsor is permitted to assign this Agreement in connection with a merger or a sale or transfer of substantially all of its assets … … neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary … [Read more...]