“Permit” (The Verb)

I noticed this post on Keith Bishop's California Corporate and Securities Law blog, on the meaning of the verb "permits" in a proposed change to the securities regulations. Here's the relevant bit of Keith's post: The verb “permit” means to give assent to some action or event. This implies an affirmative action on the part of the registrant. Applying this definition, a registrant that has no … [Read more...]

The Rise of “States”

As I explain in this article, my replacement for represents and warrants is states. Scary, huh? No, not really. For one thing, so far my consulting clients haven't had a problem with states. And consider what Kevin Heaney has to say. He's a partner in the Billings, Montana, office of the law firm Crowley Fleck. We exchange emails sporadically, and in February he attended my "Drafting Clearer … [Read more...]

“Represents and Warrants” Is a Zombie Usage

Yes, the phrase represents and warrants is a fixture in contracts. And it won't disappear from the scene any time soon. But now that my article (this one) is out there, I can declare that represents and warrants is a zombie usage. And no, it's not like one of those fast zombies. Fast zombies are badass. Instead, represents and warrants is like one of these zombies: Yeah, the kind … [Read more...]

My New Article on “Represents and Warrants”

My article Eliminating the Phrase Represents and Warrants from Contracts is now available. It's in the latest issue of Transactions: The Tennessee Journal of Business Law. Go here for a PDF. This article shows that it’s pointless and confusing to use represents or warrants in a contract to introduce statements of fact. It recommends that instead you use states to introduce statements of fact, … [Read more...]

Feedback from My Public “Drafting Clearer Contracts” Seminar in Houston

In two ways, my approach to seminar testimonials has changed over the years. First, I no longer include the name and organization of the person providing a testimonial: I don't think that information enhances the value of the testimonial, and I'm sure that many people who otherwise would give testimonials decline to do so because they don't want me parading their name in public. And second, … [Read more...]

Some Thoughts on “Bloomberg Law: Corporate Transactions”

Last week I noticed this post on Dewey B Strategic about Bloomberg BNA's new product "Bloomberg Law: Corporate Transactions. (Gotta love the colon, which gives it an action-movie-sequel vibe.) For Bloomberg BNA's own announcement, go here. 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 … [Read more...]

“At Least One of X and Y”: The Semantics Train Wreck That Is the Federal Circuit’s 2004 Opinion in SuperGuide Corp. v. DirecTV Enterprises, Inc.

I got another tip from a participant at the recent “Drafting Clearer Contracts” seminar in Houston, although I didn’t have the wit to note his name. He suggested that I check out the 2004 opinion in SuperGuide Corp. v. DirecTV Enterprises, Inc., by then Circuit Judge (now Chief Circuit Judge) Sharon Prost of the United States Court of Appeals for the Federal Circuit; for a PDF, go here. (The … [Read more...]

Oregon Moves to Standardize State Contracts

Last month I noticed with interest this article by Carol McAlice Currie in the Statesman Journal. It's entitled "House Passes Bill to Standardize Oregon Contracts." I recommend that you read the entire article, but here's the gist of it: Building on a promise to bring more transparency and accountability to government, Rep. Nancy Nathanson delivered on it this week when the House passed her … [Read more...]

“No Later Than” or “Not Later Than”?

To be consistent in your contract usages, you have to make decisions big and small. Here's a small one: which to use, no later than or not later than? Behold what a Merriam-Webster "Ask the Editor" item (here) says: [T]here are differences in the way these two expressions are used. No later than is used more often than not later than, and it is less formal. Not later than is used mostly in … [Read more...]

This Site Is Now Mobile-Friendly

Because Google thinks that it's a good thing to do, I've spared no expense to make this site "mobile-friendly." Let there be rejoicing through the land! Or not. One immediate benefit is that whatever made the blog glacially slow for at least some of you has now disappeared. It's a work in progress. If you notice anything that needs fixing or if you have any suggestions, let me know. … [Read more...]

Revisiting “Agrees That”: It Can Be Worse Than Just Clutter

Routine bits of contract clutter have the potential to create real problems. Baron Oursler, senior counsel at the transportation company FleetPride and one of the participants at last week’s “Drafting Clearer Contracts” seminar in Houston, told me about an amazing example of that. I now pass it on to you, dear reader. The Dispute It involves a dispute between UBS Securities and the hedge … [Read more...]

“Amongst” and “Whilst”

It's easy enough to find contracts that use amongst. A search on Westlaw's version of EDGAR that was limited to items filed in the past three years yielded 4,774 hits. Here are four examples, with those apparently drafted in Commonwealth countries noted with an asterisk: ... then the Maximum Indemnification Amount or the balance thereof shall be divided amongst the Office Holders at the Company … [Read more...]

“Between” Versus “Among” When Listing the Parties to a Contract

I was mildly surprised to find that I've apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here's what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by and between. It’s … [Read more...]

Mark Anderson, Google’s Patent Purchase Agreement, and Public Shaming

If you wish to witness an old-fashioned beatdown, scurry over to the IP Draughts corner of the marketplace of ideas to see Mark Anderson dismantle—Marquess of Queensbury rules!—a Google patent purchase agreement (here). I too am prone to meting out vigilante justice. Go here for my analysis of another Google contract, a services agreement. But it's a model of professionalism compared to the … [Read more...]

Variations on “Breach”

Choices in contract drafting come in big and small packages. Today, let's think small; let's think breach. Count Noun or Mass Noun? Consider the following: It will not constitute [a breach] [breach] of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose … Both of the bracketed alternatives work. How so, you ask? Well, the first … [Read more...]

The UT System Administration Contract Office Goes All-In

Through Blake Reagan, aka The Hardest-Working Man in the Contracts-Administration Business, I recently did a "Drafting Clearer Contracts" seminar for the University of Tennessee's UT System Administration Contract Office, one of multiple procurement offices in the UT System, with people from other UT contracts and purchasing offices taking part as well. Well, the other shoe has dropped. … [Read more...]

My New Article on Drafting and Negotiating International Contracts

Go here to see Top Ten Tips in Drafting and Negotiating International Contracts, co-authored by me and René Mario Scherr, Tetra Pak’s Regional General Counsel, South Asia, East Asia & Oceania. If that link doesn't work for you, go here for a PDF. You’re welcome. I met René about seven years ago, at one of my seminars. We’ve kept in touch since then; I even managed to have dinner with him in … [Read more...]

Two Language-of-Performance Variants

Last night I saw the following tweet from @kemitchell: https://twitter.com/kemitchell/status/592537342612668416 Ah, variants on a category of contract language, namely language of performance! Here's the relevant bit of MSCD 3.20: If you omit hereby from Doe hereby purchases the Shares, it would be clear from the context that the intended meaning isn't that Doe is in the habit of … [Read more...]

“Anno Domini”? In a Contract?

There I was, innocently looking at the form certificate of amendment kindly made available by the Delaware Secretary of State (here), when the concluding clause caught my eye: It contains a number of usages worthy of comment, but what grabbed my attention was the "A.D." placed before the blank for the year. Is it possible that someone might be confused as to whether we're A.D. 2015 or … [Read more...]

Contribute an Assignment to my Law-School Course

This August I'll be at Notre Dame Law School again, teaching a three-week intensive course in contract drafting. As always, the course will feature a series of written assignments. The first assignment is gentle, to ease my students into the subject. The scenario is that a senior lawyer asks a junior lawyer to revise a given draft to reflect a new deal term. I have suitable assignments ready to … [Read more...]