Does a Condition Not Make Sense if the Party Subject to the Condition Can Ignore It?

Acme has an inventory of widgets. For whatever reason, the following is in a contract between Acme and WidgetCo: It is a condition to Acme’s …

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Posted in Categories of Contract Language | 4 Comments

Save the Date: “Drafting Clearer Contracts” Seminar in Malmö, Sweden, on 26 May

I’m delighted that on 26 May I’ll be giving a “Drafting Clearer Contracts” seminar in Malmö, Sweden. It will be sponsored by the Swedish Bar …

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Posted in Seminars | Leave a comment

Referring to “Lost Profits” in Limiting-Liability Provisions

MSCD 13.105 deals with provisions that exclude certain types of damages. Here’s an example: Neither party will be responsible or held liable for any consequential, …

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Posted in Selected Provisions | 2 Comments

Out Now: My Book-Review Essay “Dysfunction in Contract Drafting: The Causes and a Cure”

Transactions: The Tennessee Journal of Business Law has just published my book-review essay Dysfunction in Contract Drafting: The Causes and a Cure. (Go here for …

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Posted in My Articles, Uncategorized | Leave a comment

I’ll Be Teaching at Notre Dame Law School

I’m pleased that this fall I’ll be teaching at Notre Dame Law School. Well, really this summer—the course will be three weeks long and will …

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Posted in Teaching | Leave a comment

“With Respect To” and the Alternatives: Cast Your Vote Now!

In this post from a few days ago, you’ll see that some tenacious readers and I have been going at it hammer and tongs, debating …

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Posted in Selected Usages | Leave a comment

A Dispute Involving “Either … Or”

Thanks to this post on Peter A. Mahler’s New York Business Divorce blog, I learned that in a recent opinion of the New York Supreme …

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Posted in Ambiguity | 5 Comments

“With Respect To”

After last Thursday’s “Drafting Clearer Contracts” seminar in Dallas for West LegalEdcenter, I had the pleasure of having dinner with longtime reader and commenter Chris …

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Posted in Selected Usages | 18 Comments

Resources on Drafting Consumer Contracts?

A reader asked me whether I could recommend any MSCD-ish resources on drafting consumer contracts. The short answer is that I’ve never looked for any …

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Posted in Odds and Ends | 9 Comments

Actually, a Contract Is No Place for the Word “Actually” (With One Exception)

The word actually doesn’t have many friends. Commentators think it’s overused; see this article by Claire Carusillo in the New Republic and this article by Heidi Stevens …

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Posted in Selected Usages | 2 Comments

“Limitation”

There’s always something that needs fixing. Yesterday, I was inclined to carve on my forehead, in mirror-script, “Stop using limitation instead of limit!” Consider the following …

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Posted in Selected Usages | 11 Comments

What Does “Client” Mean? It Depends on the Timeframe

When you refer to something in a contract, the meaning can vary depending on the timeframe. For example, MSCD 13.4 and this 2009 post discuss …

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Posted in References to Time | Leave a comment

“In and To”

I received the following inquiry from longtime reader Vance Koven: I’ve been trying to find someplace in MSCD or your blog where you address the …

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Posted in Selected Usages | 10 Comments

Extraneous Language of Declaration

In contracts, language of declaration is used by parties to declare facts. And as I say in MSCD 3.270, “Language of declaration allows parties not …

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Posted in Categories of Contract Language | 3 Comments

Expanded Language of Recommendation

One of the categories of contract language is language of recommendation. It’s discussed at MSCD 3.332, and I introduced the idea in this 2011 post. …

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Posted in Categories of Contract Language | 18 Comments

Ethics: Drafting Templates for Two Clients in the Same Industry

Here’s an issue I’ve occasionally pondered: What if you prepare a template for one client in a given industry, and then another company in the …

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Posted in Ethics | 6 Comments

In-House Seminar in Scandinavia?

I’ll be in Denmark the last week in May to do an in-house seminar. If you’re located in Scandinavia and would like to discuss having …

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Posted in Seminars | 2 Comments

“Disruption”: A Label More Conducive to Heat Than Light

It’s easy to find on Twitter people eager to embrace as a “tipping point” every questionable come-to-us-for-your-contracts offering. Express skepticism and they might invoke Clayton …

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Posted in Process | 2 Comments

30 Years of the Michigan Bar Journal’s “Plain Language” Column

The Michigan Bar Journal’s “Plain Language” column recently celebrated its thirtieth year. Joe Kimble, its longtime editor, wrote this piece marking the event. Congratulations to …

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Posted in Odds and Ends | Leave a comment

“Defend” Doesn’t Begin to Address Indemnification Procedures

In MSCD 13.334, and in this post, I say the following regarding defend in the witless triplet indemnify, defend, and hold harmless: Drafters routinely tack defend on …

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Posted in Indemnification | 2 Comments

Geneva Seminars Sold Out; Places Still Available for Walldorf Seminar

I’m delighted that my seminars in Geneva on 10 April and 11 April are sold out. I’m looking forward to it: the facilities are great, …

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Posted in Seminars | Leave a comment

Creating an Online Set of Materials for Teaching Contract Drafting

My thoughts are turning back towards teaching. In particular, wearing my Mr. Commoditize hat, I’ve been considering how one of the big problems with teaching …

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Posted in Teaching | 3 Comments

Google’s Services Agreement? Lots of Room for Improvement

To entertain myself during my recent travels, I retrieved from the SEC’s EDGAR system a Google services agreement and proceeded to annotate it to show …

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Posted in Bad Drafting | Leave a comment

Check Out DiligenceEngine

I’ve enjoyed my online exchanges with Noah Waisberg, aka @DiligenceEngine. So I’m pleased to say that his service, DiligenceEngine, is now ready for its closeup. …

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Posted in Technology | 1 Comment

“Self-Deleting”?

A participant at my recent Canberra seminar made me aware of “self-deleting” contract provisions. I gather that it’s a standard notion in government contracts. Here’s …

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Posted in Selected Usages | 3 Comments

Law Firms and Document Assembly: Q&A with Ken Grady of SeyfarthLean Consulting LLC

At the ReInvent Law conference in New York earlier this month, I found myself sitting in front of a group of people from the law …

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Posted in Document Assembly | Leave a comment

So Training in Contract Drafting Isn’t Important to Employers?

Via this post on the WSJ Blog, I learned about survey results presented by three Harvard Law School professors in an article entitled “What Courses …

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Posted in Teaching | 2 Comments

Notes from the Road: Australia 2014

I’m back in Kuala Lumpur, for a seminar starting tomorrow. I came here from Sydney; let me tell you about my time in Australia. As …

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Posted in Notes from the Road | 2 Comments

How to Address Unreasonable Withholding of Consent

These days I mostly get my inspiration from contracts and from caselaw, but books by others can also be a source of useful ideas. Seeing …

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Posted in Categories of Contract Language, Selected Provisions | 6 Comments

“Non-Breaching Party”

Reader @mpietruczak told me about this newsletter by Duane Morris. It’s about the decision of the U.S. District Court for the Northern District of California in Powertech …

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Posted in Selected Usages | 13 Comments

Contract As Pleading?

I noticed that the National Security Agency and the Department of Homeland Security have finally acknowledged that merchants who use images and names of those agencies on …

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Posted in Layout | 2 Comments

One-on-One Coaching

This week I start offering one-on-one coaching to someone from the procurement department of a major company. It will consist of eight one-hour video-chat sessions, …

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Posted in Teaching | Leave a comment

“Glossary”?

A contract I’m reviewing contains, as appendix A, a definition section. But it’s not referred to as a definition section. Instead, the heading is “Glossary …

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Posted in Defined Terms | 3 Comments

A Case Study in the Value of Including the Time of Day When Stating a Point in Time

Today I found myself on the website of the Australian Department of Immigration and Border Protection, looking to apply for a visa. (My Australia “Drafting …

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Posted in References to Time | 6 Comments

“Setoff” and “Offset”

Today I encountered in a contract the following use of offset: Unless it has notified Company otherwise, the Vendor shall offset the Search Fees payable …

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Posted in Selected Usages | 5 Comments

“Revoke”

Today I encountered in a contract the following use of revoke: The Vendor may revoke this license at any time upon notice to the Company. …

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Posted in Selected Usages | 8 Comments

“Herein” (And I Need a Label for This Kind of Ambiguity)

I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget …

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Posted in Ambiguity | 14 Comments

“Shall Not Allow”

It’s routine for one post to beget another. My post on shall not negligently (here) was prompted by the following contract language: Company will not, …

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Posted in Categories of Contract Language, Selected Usages | 1 Comment

“Shall Not Negligently”

While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following: Company will not, and …

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Posted in Selected Usages | 9 Comments

Proskauer Hosting June 19 Public “Drafting Clearer Contracts” Seminar in Los Angeles

I’m pleased to announce that on June 19, 2014, the Los Angeles office of the global law firm Proskauer will host one of my public …

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Posted in Seminars | Leave a comment

Setting the Scene in Services Agreements

Last week, a reader sent me the following sentence from a services agreement: Vendor hereby accepts such appointment and agrees to actively and continuously exert …

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Posted in Selected Provisions | 12 Comments

My Updated List of Posts on the Contracts Process

I have a list with hyperlinks to my blog posts and articles about the contracts process. Periodically I update it; go here for the most …

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Posted in Process | Leave a comment

If You Commission Translations of Contracts, Consider Taking Juliette Scott’s Survey

In 2012 I wrote here about how Juliette Scott, a translator who blogs at Words to Deeds, is doing PhD research on the legal profession’s experience …

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Posted in Odds and Ends | 1 Comment

“Actively” (Including “Actively Traded”)

The word actively can join the long list of useless—or at least mostly useless—words used on contracts. In particular, it often seems that actively is in …

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Posted in Selected Usages | 2 Comments

Excluding Direct and Indirect Damages

Earlier this month I unleashed the following tweet: Love it when contracts exclude both "direct" and "indirect" damages (usually with a bunch of other stuff). …

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Posted in Selected Usages | 9 Comments

Two Reviews on Amazon Complain About MSCD’s Binding

I was surprised to notice that the first two Amazon reviews of the third edition of MSCD (here) mostly complain about the Wire-O binding. I’m a …

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Posted in MSCD | Leave a comment

Using Italics for Defined Terms?

A rogue comment by noted anarchist A. Wright Burke, M. Phil., in this post got commenters contemplating alternatives to using initial capitals to designate defined …

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Posted in Defined Terms | 32 Comments

A Lesson for Contract Drafters from the A-Rod Dispute

Via prolific tipster Steven Sholk, I learned of this post, by Nathaniel Grow, on Sports Law Blog about baseball player Alex Rodriguez’s legal maneuvering in …

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Posted in Ambiguity | 5 Comments

Making Mischief with “May” in Litigation Involving the Merger of JPMorgan and Bear Stearns

If I argue that a particular contract usage can create confusion, it’s nice when I can point to a court opinion that inadvertently confirms as …

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Posted in Categories of Contract Language | 11 Comments

You Don’t Want to Make This Kind of Mistake in a Contract Formula

If there’s anything worse than drafting confusing contract language, it’s making a mistake that results in a provision conveying a meaning that puts your client …

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Posted in Bad Drafting | 5 Comments