I find that the notion of categories of contract language (considered in detail in chapter 2 of MSCD) often provides a useful framework for analyzing substantive drafting issues.
Take an issue I was asked about twice recently, once at the ACC annual meeting, once by one of my Penn Law students. It’s routine for contract provisions to assign future rights, but what’s the best way to accomplish that? I see three possibilities; here they are, in skeletal form:
Language of Performance: Acme hereby assigns any Future Rights.
Language of Obligation: Acme shall assign any Future Rights.
Language of Policy: Acme will be deemed to have assigned any Future Rights.
Which works best? I’m relying on you, dear reader, to enlighten me. For one thing, language of performance would seem the safest option, but is there any problem with assigning now something that doesn’t exist?
By the way, if you’re into licensing, you might find of interest this August 2008 post on granting language and the extensive comments it received.