“Conscious Contracts”?

Tweets by @Jeena_Cho and @CherylStephens alerted me to this item by J. Kim Wright. The title is Conscious Contracts: Bringing Purpose and Values into Legal Documents. Go ahead and read it; it's short. I'll wait. You're back? Good. In her tweet, Cheryl asked me whether there was room in my world for this concept. Well, I find what Kim has to say pretty sensible. It's a refreshing antidote to … [Read more...]

“Right, Title, and Interest”

I think it's time I said something about right, title, and interest, no? You just know that right, title, and interest is a bit of inflated legal phrasing that serves only to make legal prose suitably sonorous. That the three elements are invariably kept in the same order is one sign that their function is incantatory and not substantive. But let's look more closely at right, title, and … [Read more...]

Is It Ever OK Not to Be Clear in a Contract?

Yesterday I had an exchange on Twitter with Pam Chestek, aka @pchestek, proprietor of the Property, Intangible blog. (You'll see next month my article that sprang from a fruitful discussion I had with Pam a few months ago.) Yesterday's exchange was prompted by my post on paid-up and royalty-free (here), but it strayed into the role of clarity in contracts. Here one relevant … [Read more...]

Ever More Readers

The publishing people at the American Bar Association are particularly happy with A Manual of Style for Contract Drafting. Usually sales of a book drop off with each new edition. With MSCD, each edition has sold more than the previous one. With that in mind, I noticed that according to Google Analytics, yesterday there were 3,405 visits to this site. That's the biggest one-day total ever, but … [Read more...]

The Minimum Standards for Discourse: A Response to Tim Cummins

Ah, the marketplace of ideas! You get to set up your soapbox on any street corner and do your darnedest to plug your ideas. May the best ideas win! But even the rough-and-tumble of the marketplace of ideas has a code of conduct. For one thing, you don’t get to have your ideas prevail over the other guy’s by putting a hood over the other guy’s head, hog-tying them, and throwing them in a … [Read more...]

When Common-Law Contract Terminology Collides with Civil Law

A topic of particular interest to me is the ways in which contract terminology used by those practicing in common-law jurisdictions doesn't make sense in a contract governed by the law of a civil-law jurisdiction. It's a topic I've touched on sporadically; see for example this 2009 post on enforceability of time is of the essence provisions in civil-law jurisdictions. But I was reminded of it … [Read more...]

Another Reason to Use the Full Reference in Cross-References to Subsections

From MSCD 4.94: In the interest of consistency and to facilitate revisions, when referring to two or more subsections of the same section, repeat the section number. For example, say section 6(b) or 6(c) instead of section 6(b) or (c). But another reason for this practice came to mind when I looked at the language at issue in this morning's other post (here). Here's part of it: (f) To the … [Read more...]

Musings on the Nature of Ambiguity Prompted by a Recent Opinion of the Delaware Court of Chancery

Today I saw this post by Francis Pileggi on the Delaware Corporate & Commercial Litigation Blog. It's about the recent opinion of the Delaware Court of Chancery in Cyber Holding LLC v. CyberCore Holding, Inc. (PDF here). Cyber Holding LLC (“Seller”) sold CyberCore Corporation (the “Company”) to CyberCore Holding, Inc. (“Buyer”) (what an imaginative bunch of names) in a transaction that … [Read more...]

The Market Forces Behind My Move from Koncision to Adams Contracts Consulting

Some of you will recall that in December 2010 I launched Koncision Contract Automation and the accompanying website. I shut it down in June 2014, but it was irrelevant long before that. A few days ago I announced a new business, Adams Contracts Consulting. The factors behind the demise of Koncision are the same as the factors behind my starting Adams Contracts Consulting. In case it's of … [Read more...]

I Don’t “Tweak” Templates

A few months ago someone contacted me about redrafting their organization's template confidentiality agreement. It was a simple enough matter, and after some back and forth, I was ready to start. Then I had a phone call with a colleague of my initial contact. I soon gathered that this person didn't have in mind my redrafting the template. Instead, I would be "tweaking" it—giving it some sort of … [Read more...]

Some Thoughts on the Adobe Legal Department Style Guide

Via this post by @bobambrogi, I learned that Adobe has made public a 30-page document called The Adobe Legal Department Style Guide, to encourage others to use it and adapt it for their own legal departments and law firms. Here's why I'm writing about it: This document applies to all In-House Legal Department communication and documents, but has a special focus on transaction documents and other … [Read more...]

Meet My New Business, Adams Contracts Consulting LLC

I've created a new business, Adams Contracts Consulting LLC. We help companies make their template contracts clearer, more concise, and more effective. We also help companies automate their templates, using ContractExpress. Why a new business? After all, I've long had "Consulting" as an item on the menu bar of this site. I'm putting those activities in a new business simply because my … [Read more...]

University College London 2 November 2015 “Drafting Clearer Contracts” Seminar: Registration Now Open

I've previously mentioned that on 2 November 2015 I'll be returning to University College London to do a public "Drafting Clearer Contracts" seminar with the UCL Faculty of Laws. Well, registration is now open: go here. Check out toward the bottom of the page testimonials from people who took part in last year's UCL seminar. And I just came back from doing an in-house seminar for an English law … [Read more...]

Use of “Paid-Up” and “Royalty-Free” in Granting Language

Yesterday I revisited in this post use of sole and exclusive in granting language in a license agreement. Well, we're not done, because yesterday I saw the following in a contract: Acme hereby grants Widgetco an irrevocable, worldwide, paid up, royalty-free, exclusive license … That caused me to wonder about paid-up (it's a phrasal adjective, so I'd use a hyphen) and royalty-free. So of course I … [Read more...]

Simplifying Governing-Law Provisions, Part 3 (“Governs” and the Alternatives)

To accompany my previous two posts (here and here) on issues relating to language used in governing-law provisions, here's another: Do you say that the law in question governs the contract or, alternatively, that the contract is governed by the law in question? (This is a context where the passive voice is largely harmless.) Or do you refer to interpretation or construction or both (perhaps with … [Read more...]

Revisiting “Sole” and “Exclusive” Yet Again

Recently I expressed to a group of patent lawyers my reluctance to use sole and exclusive in granting language to indicate that the licensor retains or doesn't retain, respectively, the right to use the intellectual property. But on revisiting MSCD 13.606–10 and this 2012 post, I realized that I haven't yet offered suitable alternatives. So here goes: In contracts on EDGAR, the most popular … [Read more...]

Simplifying Governing-Law Provisions, Part 2 (Renvoi!) [Updated]

[Updated July 13, 2015: In my original post, I proposed not bothering to say in a governing-law provision that the court is to consider just the substantive law of the jurisdiction in question, instead of using choice-of-law principles as a basis for deciding to apply a different law. That was my opening position, pending further research. Well, I've now done further research, and I've found no … [Read more...]

A Literary Analogy

Like many a teenager in olden times, I had my Beat Generation phase. As far as I can see, it had no demonstrable effect on my life. No Neal Cassady I! But one fragment has somehow stuck in my mind. Here's what William Burroughs says in the introduction to Naked Lunch: The title means exactly what the words say: naked lunch, a frozen moment when everyone sees what is on the end of every … [Read more...]

Say Hello to Lit IQ

At LegalTech West on Tuesday, July 14, during the session starting 1:30 p.m. PDT entitled “Legal Disruption Lightning Round Two,” Gurinder Sangha will make a five-minute presentation about Lit IQ. Let me tell you a bit about Lit IQ. Over the years, I’ve sporadically thought that it would be helpful if you could use software to check draft contracts for glitches. And not just the kind of … [Read more...]

Simplifying Governing-Law Provisions, Part 1

Consider these two alternatives: The laws of the State of Ohio govern ... Ohio law governs ... Any reason not to opt for the second alternative? It's simpler, in that (1) Ohio acts as an adjective instead of forming part of a prepositional phrase and (2) it dispenses with State of. How about saying New York law governs? Could anyone plausibly argue that that refers to the laws of the City … [Read more...]