Stating Warranties Relating to “Future Facts”

I’d like to revisit something discussed in MSCD—how one states warranties relating to, for example, goods yet to be delivered. Consider the following: Acme warrants that …

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Posted in Categories of Contract Language, Selected Usages | 3 Comments

The Role of Narration in Contract Drafting

I’m in the habit of dividing the task of contract drafting into determining what to say and how to say it. But that’s not to …

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Posted in Process | Leave a comment

Being Specific in Contracts Can Help Avoid Confusion When Circumstances Change

Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a …

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Posted in Uncategorized | 4 Comments

Some “Efforts” Advice That I Wouldn’t Give

In the early days of my rummaging through the entrails of contract language, I logged a lot of time with the second edition of Bryan …

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Posted in Process, Selected Usages | 16 Comments

Using English-Language Contracts in China: My Q&A with China Law Blog

In March I’m going to Beijing and Shanghai to give public (here) and in-house “Drafting Clearer Contracts” seminars. I’ve never been to mainland China, so …

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Posted in International, Q&A | 2 Comments

What’s All the Chatter About Free Contracts?

Gee, did I miss the announcement that it was “Free Contracts Week” on the blawgosphere? First there was this article on Tech Crunch by @ddoktori. …

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Posted in Legal Industry | Leave a comment

Fun with Search-and-Replace Glitches

Recently I read a contract that contained scattered search-and-replace glitches. In attempting to remove identifying information, someone had searched for one of the party-name defined …

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Posted in Odds and Ends | 10 Comments

An Underwhelming “Efforts” Opinion by the Quebec Superior Court

A little birdie told me about the opinion of the Quebec Superior Court in Cemar Electro Inc. v. Grob Textile, A.G., 2014 QCCS 5814. (Go here …

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Posted in Selected Usages | 5 Comments

Don’t Use “Mean” in Autonomous Definitions Just Because the Defined Term Is Plural

Each of the following extracts from EDGAR exhibits the same problem: For purposes of this Agreement, “Eligible Plan Assets” mean total Plan Assets (including assets …

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Posted in Defined Terms | 1 Comment

“Nothing in this Agreement Gives X the Right”

Behold the following: Nothing in this agreement gives either party a license or other right to use the trademarks … If the idea is that …

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Posted in Categories of Contract Language | 12 Comments

How Smaller Law Firms Can Use Document Assembly

A lot of discussion about how smaller law firms can use document assembly—see for example this article—isn’t particularly exciting. You might be left with the impression that …

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Posted in Contract-Automation Clearinghouse, Document Assembly | 3 Comments

Seminar Update: San Francisco Seminar Rescheduled for February 20 (And the First Round’s on Me!)

My December 11, 2014, San Francisco “Drafting Clearer Contracts” seminar was cancelled because of a power outage caused by the epic storm that swept through the …

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Does Your Company Use Contract-Lifecycle-Management Software?

Years ago a wrote briefly about contract-lifecycle-management (CLM) software, which is software that allows an organization to keep track of its contracts and key contract information, …

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Posted in Process, Technology | 5 Comments

Why Contract Automation Isn’t Among Bob Ambrogi’s 10 Most Important Legal Technology Developments of 2014

In this post on his LawSites blog, Bob Ambrogi (@bobambrogi) lists what he considers the ten most important legal technology developments of 2014. It makes for …

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Posted in Contract-Automation Clearinghouse, Document Assembly | Leave a comment

Seminar Update: No 2015 Australia Seminars

I’m sorry that I’ve been slow to post this, but I won’t be doing seminars in Australia in 2015, even though the author note in …

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Reports of Automated M&A Contract Creation Have Been Greatly Exaggerated

Over the weekend @bickmark sent the following tweet my way: .@KonciseD Does the quote regarding questionnaire-based automation ring true? Has BigLaw automated the M&A agreement? …

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Posted in Contract-Automation Clearinghouse, Document Assembly, M&A | Leave a comment

Plenty of Room for Improvement: My Critique of IBM’s New Two-Page Cloud-Services Contract (Updated with PDFs Containing the Comments)

Via a regular source of my Twitter leads, @ronfriedmann, I learned of this article in Corporate Counsel by Sue Reisinger about how a team at IBM …

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Posted in Bad Drafting | 14 Comments

The Sad Truth About Promiscuous Copying of Contract Language

I recently came across this blog post on Clio’s website. Clio is software that handles time and billing, calendaring, and collaboration, but this blog post …

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Litigation Over the Meaning of “Pro Rata”? Don’t Be That Drafter

Here’s a story told in this post on the BeLabor the Point blog: A contract between a company and a departing employee stated that the …

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Posted in Bad Drafting | 1 Comment

“Actual”

Does the word actual have a role to play in contracts? Sure, when it’s used to draw a contrast with some other attribute: any actual …

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Posted in Selected Usages | 2 Comments

Overhauling Your Contract Process? Don’t Skimp on Contract Creation

Via this post by Tim Cummins, I learned of this article in the National Law Journal by Mark Harris, chief executive officer of Axiom, “a provider of technology-enabled legal services” …

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New In-House Offering: Seminar on Advanced Categories of Contract Language

Recently I did in Toronto a day-long workshop entitled “An Intensive Program in the Categories of Contract Language.” “The categories of contract language” is my …

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Posted in Seminars | Leave a comment

Can a Trust Enter Into a Contract?

At one of my recent Toronto seminars, a participant mentioned something about how a trust cannot enter into a contract. So I followed up by …

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Posted in Front of the Contract | 9 Comments

Does It Make Sense to Require Someone to Use “Efforts” to Complete Something in a Reasonable Time?

One reason I keep an eye on Twitter is that occasionally random bits of interesting drift by. For example, behold the following: Is this a …

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Posted in Selected Usages | 14 Comments

What It Takes to Be a Great Contract Drafter

Here’s what it takes to be a great contract drafter: Know the deal mechanics. As a drafter, it’s your job to express the transaction in …

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Posted in Odds and Ends | 5 Comments

“Shall Not … Unless” Versus “May … Only If” (Updated!)

[Updated December 9, 2014] One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. …

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Posted in Ambiguity, Categories of Contract Language | 30 Comments

Update on LawInsider.com

In this 2013 post I wrote about LawInsider.com, a searchable database of the SEC’s EDGAR system. I followed that with an update in this July …

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Posted in Technology | 5 Comments

Zurich “Drafting Clearer Contracts” Seminars in April 2015

I’m pleased to announce that I’ll be giving public “Drafting Clearer Contracts” seminars in Zurich, Switzerland, on Wednesday, 15 April, and Thursday, 16 April 2015. The seminars …

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China “Drafting Clearer Contracts” Seminars in March 2015

I’m pleased to announce that I’ll be giving a public “Drafting Clearer Contracts” seminar in Beijing on March 6, 2015, and one in Shanghai on March 10, …

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Posted in Seminars | Leave a comment

Clear Drafting Doesn’t Involve Dumbing-Down

I was recently reminded of the following, from a work on contract drafting: Effective writing consists of clear communication of the subject matter to its intended …

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Posted in Odds and Ends | 8 Comments

A Brief Note on Being Included in the Blawg 100 Again

I learned yesterday that this blog has again been included in the ABA Journal’s “Blawg 100“—its list of the hundred best law blogs. This blog …

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A Plausible Candidate for Contract Automation: The National Association of State Procurement Officials (NASPO)

Change is facilitated by economies of scale: implementing a document-assembly system for contract drafting becomes more feasible if the aim is to serve many users, …

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Posted in Contract-Automation Clearinghouse, Document Assembly | Leave a comment

What Information to Include for a Japanese Company in the Introductory Clause

The party information you include in the introductory clause should serve to distinguish that party from anyone else bearing that name. But I’m acutely aware …

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Posted in Front of the Contract | 3 Comments

“Well and Truly”

Is there no end to the oddity of traditional contract legalese? Today we consider well and truly, which I was happily unaware of until I considered …

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Posted in Selected Usages | 3 Comments

A Recital of Consideration from Heck

Reader Gabriel Kurcab, a lawyer at the Cincinnati law firm Katz Teller, sent me the following traditional recital of consideration, which he had found in a medical director …

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Posted in Front of the Contract | 4 Comments

The Tortoise, the Hare, and Different Speeds of Mental Function

The other day I had a chat with a BigLaw senior associate. He operates at a very high clock rate: he rattled off various doctrinal …

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Posted in Odds and Ends | 1 Comment

Why It’s Important to Police Your Defined Terms

I know only too well that if you draft a contract of any length and complexity, keeping track of the defined terms can be a …

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Posted in Defined Terms | 4 Comments

Seeking Objective Signs of Progress

I see plenty of signs of increasing interest in rational contract language. For one thing, people keep buying MSCD in healthy numbers, and I find …

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Posted in Odds and Ends | Leave a comment

Feedback from Participants at My University College London Seminar

I described in this post how I had been a little nervous about how I’d be received in England. Well, the initial feedback from participants …

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Posted in Seminars | 1 Comment

Bringing Kaizen to the Contract Process

I noted with interest this article in the New Yorker by James Surowiecki. It’s about how a focus on incremental gains, in sports and elsewhere, …

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Posted in Contract-Automation Clearinghouse, Process | Leave a comment

“To Wit” (And Submit Your Favorite Fatuous Archaisms)

During my public “Drafting Clearer Contracts” seminar in New York last Thursday, a participant mentioned the phrase to wit. Here’s what Black’s Law Dictionary has …

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Posted in Selected Usages | 3 Comments

Notes from the Road: Back to London

I’ve just returned from from my third trip to London this year. The first was to speak at a conference; the second was to do …

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Posted in Notes from the Road | 4 Comments

How Hard Is MSCD-Compliant Drafting?

This from a reader who is director of legal services at a global company: The problem with a full commitment to adopting MSCD is that …

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Posted in Process | 2 Comments

Using Words and Digits to State Numbers: A Reminder

Yesterday a reader sent me an extract from a contract, with the following note: I just received a sublease draft from my outside counsel. He …

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Posted in Numbers | Leave a comment

A Suboptimal Variant of Language of Performance

Every so often an issue arises in a topic that I haven’t had occasion to think about in a while. Here’s an instance of that. …

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Posted in Categories of Contract Language | 5 Comments

Stating in a Contract Where It’s Being Entered Into

Usually, where one or more parties happen to be on signing a contract should have no bearing on that contract. It might be relevant for purposes of determining the …

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Posted in Back of the Contract, Front of the Contract | 9 Comments

Using “Intend” in Recitals

In MSCD and in this 2011 post I discuss using want in recitals instead of wish or desire. But how about intend? I hereby propose …

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Posted in Front of the Contract | 5 Comments

Singapore Case on “All Reasonable Endeavours”

Thanks to this item on Lexology by Kimarie Cheang of Holman Fenwick Willan, I learned that earlier this year, in the case of KS Energy Services …

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Posted in Selected Usages | 3 Comments

Thoughts on Style Versus Substance

There’s style, and there’s substance, no? Well, not quite. Some drafting decisions don’t affect meaning. That includes all decisions relating to the look of a document. …

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Posted in Odds and Ends, Uncategorized | Leave a comment

Opportunities for Document Assembly in the Construction Industry

The construction industry was an early adopter of commoditized contract creation. In this 2006 post I mentioned the AIA Contract Documents, promulgated by the American …

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Posted in Contract-Automation Clearinghouse, Document Assembly | Leave a comment