Plenty of Room for Improvement: My Critique of IBM’s New Two-Page Cloud-Services Contract

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 | 3 Comments

“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 | Leave a comment

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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Posted in Process | Leave a comment

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 | 11 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 | 4 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 | 29 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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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 | 7 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

On Reading a Contract

I suspect that I don’t read contracts like other folks. When I’m in let’s-analyze-contract-usages mode, I trawl through contracts looking at how drafters express a …

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Posted in Process | 4 Comments

Active Drafting: A Short Manifesto

The act of creation is associated with the act of naming. That which is nameless doesn’t fully exist. I haven’t given a name to my approach to …

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Posted in Odds and Ends | 3 Comments

Solicitors Journal Contains My New Article on “Endeavours” (PDF Copy Now Available)

[Updated October 14, 2014: Go here for a PDF copy. Incidentally, I haven’t yet received any feedback about this article, but I’m not surprised. I wouldn’t …

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Posted in My Articles | 3 Comments

“Tested,” Meet “Market”

The biggest conceptual obstacle to clearer contract language is the notion of “tested” contract language—the idea that if a court offers its interpretation of confusing …

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Posted in Bad Drafting | 2 Comments

Put the Best People to Work on Your Templates

I wrote here about Shake, the app that allows you to “Create, sign and send legally binding agreements in seconds.” But this post isn’t about …

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Posted in Process | 1 Comment

From Litigator to Deal Lawyer: Q&A with Eric Hutchins of Oracle

In my seminars, I’ve encountered people who started out as litigators, then shifted to working with contracts. That caused me to wonder what that transition …

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Glenn West’s New Article on Fraud Carve-Outs in Acquisition Agreements

Longtime readers of this blog will be familiar with Glenn West. His articles on extra-contractual liability (here), consequential damages (here), and “no recourse against others” …

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Posted in News | 1 Comment

Reminder: My October 16 Webinar on Translating International Contracts

Just a reminder that on October 16 at 14:30 BST (9:30 EDT), I’ll be giving for eCPD Webinars a webinar entitled “The Perils of Translating …

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Posted in Seminars | Leave a comment

My New Article in Korean

The Korean periodical the Legal Times has published the first half of my article English-Language Contracts: Reducing the Clutter and Confusion (go here). What’s novel about …

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“Faithfully” (Including How to Express an Employee’s Key Obligation in an Employment Agreement)

A reader who identified himself as “a faithful reader from Northern Virginia” asked me about use of the word faithfully in contracts—yet another usage that …

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Posted in Selected Usages | 18 Comments

What Distinguishes Bad Contract Drafting from Bad Writing

A couple of readers sent me links to articles relating to Steven Pinker and his new book, The Sense of Style: The Thinking Person’’s Guide to …

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Posted in Bad Drafting | 7 Comments

“Continuously”

This week I had the pleasure of giving two in-house “Drafting Clearer Contracts” seminars in Doha, Qatar. As often happens, I came away with with …

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Posted in Selected Usages | 4 Comments

A Condition Might Not Be the Only Condition

Consider the following, the first expressed positively, the second expressed negatively: We’ll let you into the party only if you’re wearing a red carnation and …

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Posted in Categories of Contract Language | Leave a comment

Whether to Express Positively or Negatively Language of Policy Subject to a Condition

Last month I considered in this post the relative merits of shall not … unless and may … only if, the former negative, the latter positive. I …

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Posted in Categories of Contract Language | 22 Comments

Scholastica Blog Interviews Me

Go here for my interview on Scholastica Blog about my recent course at Notre Dame Law School.

Posted in Teaching | Leave a comment

My New Article About “Shall”

The current issue of The Australian Corporate Lawyer—the journal of the Australian Corporate Lawyers Association—contains my article Banishing Shall from Business Contracts: Throwing the Baby …

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Posted in My Articles | 4 Comments

Contract Drafting in Japan: My Q&A with Yusuke Sato

In November, I head to Asia—I’m giving seminars in Seoul, Tokyo, and Singapore. I’m particularly looking forward to my seminar in Tokyo. It will be …

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Posted in Q&A | 1 Comment

Doing That Bracket Thing in Your Signature Blocks

Yesterday I saw an English template contract that had in the signature blocks three brackets (or rather, closing parentheses) one on top of the other. …

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Posted in Back of the Contract | 8 Comments