“Hereby Enter Into”

Note use of hereby enter into in the following Pleistocene-era lead-in: NOW THEREFORE, the parties hereby enter into this Agreement to set forth their mutual promises and understandings, and mutually acknowledge the receipt and sufficiency of valuable consideration in addition to the mutual promises, conditions and understandings set forth below. And note the same in the following concluding … [Read more...]

“Within 30 Days Prior To”

Keith Bishop—he of the California Corporate & Securities Law blog—was kind enough to tell me about this post, dealing with a dispute over the meaning of the phrase "within 30 days prior to" in the context of the time period for exercising an option. The court opinion in question is Wilson v. Gentile, 8 Cal. App. 4th 759 (1992) (here). Here's how the court introduced the issue: In this case … [Read more...]

Inside the Mind of the Law-School Traditionalist

I have a mixed relationship with the law-school world. On the one hand, an increasing number of instructors use MSCD as a course text. On the other hand, people from law schools are among the most ardent defenders of traditional contract language that I have encountered. So I was interested to see this post on ContractsProf Blog by Nancy Kim, professor at California Wester School of Law. She … [Read more...]

“Is Bound To”

Table 2 in MSDC chapter 3 displays an assortment of suboptimal ways to impose an obligation on a contract party that's the subject of a sentence. I use shall, of course (as I explain in this article); the suboptimal variants include agrees to, undertakes to, and commits to. Well, I'm happy to announce that I've discovered another suboptimal variant, is bound to (and will be bound to, if the … [Read more...]

Bryan Garner on “Including But Not Limited To”

Thanks to @traduccionjurid, yesterday I learned of the following tweet by Bryan Garner: https://twitter.com/BryanAGarner/status/634425867372879872 Garner is in a class of his own as a legal lexicographer. And Garner’s Modern American Usage is what I consult first when I have a question on general English usage. But as an authority on contract drafting, he’s a great lexicographer. For … [Read more...]

Why Did This Contract Language Cause a Fight?

Last year someone—I'll call him George—hired me to analyze for him a sentence in a contract. George had sold his business. Part of the purchase price was to be paid in an earnout: after the closing of the sale, the buyer was to make up to three additional payments to George if in the three years after the closing of the transaction specified revenue targets were met. Revenues at the 12 Month … [Read more...]

In Contracts, Uncertainty Is Everywhere

One interesting tidbit in the Tim Cummins post I discuss in this post is his reference to a court opinion involving a dispute over meaning of the word “new”. It’s Reliable Contracting Grp., LLC v. Dep't of Veterans Affairs, 779 F.3d 1329 (Fed. Cir. 2015) (PDF copy here). The issue in that case was whether generators that had never been used but had been previously owned and damaged by improper … [Read more...]

Pinning Your Hopes on Pie-in-the-Sky: My Analysis of Another Tim Cummins Post

Earlier this month I felt compelled to respond to a critique by Tim Cummins of an article I had co-authored. (See this post.) Tim is head of the International Association for Contract & Commercial Management (IACCM). Since it’s safe to assume that Tim won’t be inviting me over for tea any time soon, there’s nothing preventing me from now commenting on a more recent post on his blog, one … [Read more...]

What Makes for a Good Contracts Playbook?

It's a little after 4:00 a.m., I'm in a lounge at Bangkok's airport, and my thoughts have turned to ... contracts playbooks. You know—those scripts that tell a company's contracts professionals how to respond to comments to the company's draft contracts, or how to respond to the other side's drafts. In connection with a consulting project I'm working on, a client recently sent me their playbook … [Read more...]

Mark Anderson on Insurance Provisions in Contracts

A standard feature of commercial contracts is a section—usually entitled "Insurance"—that specifies the insurance coverage that one or more parties are required to maintain. I'm regularly surprised at how contract parties are willing to throw something together without input from insurers. For an antidote to that sort of improvised approach, see this post by Mark Anderson on IP Draughts. … [Read more...]

My “Bamboozled by a Comma” Article Is Now in Print

Remember my article Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.? Well, it's now in print, in The Scribes Journal of Legal Writing. Go here for a PDF. The citation would be to 16 Scribes J. Legal Writing 45 (2014–15). The article seeks to debunk a variant of the principle of interpretation known as "the rule … [Read more...]

Do I Eat My Own Dog Food?

It’s not particularly elegant, but the notion of eating your own dog food is a recognized metaphor in the tech world. Here’s how Wikipedia describes it: Above is part of a post on Contract-Automation Clearinghouse. To see the rest, go here. Contract-Automation Clearinghouse is where I now put my posts on contract automation and related topics. … [Read more...]

“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...]