Today's issue of the New York Law Journal contains, in the "GC New York" section, my second bi-monthly "Contract Drafting" column. Entitled "Sending Contracts Offshore," this column explores the possible benefits to U.S. companies of having their contract-related work performed outside the U.S. It also discusses factors to bear in mind when deciding whether to have such work performed by … [Read more...]

Via the InHouse Blog I learned of a briefing paper written by Leon N. Ferera, John R. Phillips, John Runnicles, and Jeffery D. Schwartz of Jones Day entitled "Some Differences in Law and Practice Between U.K. and U.S. Stock Purchase Agreements." It touches on various subjects of interest to me, but what caught my eye in particular was its discussion of representations and … [Read more...]

I'll be doing for West Legalworks a summer series of my "Contract Drafting—Language and Layout" seminar. Here are the dates: June 19, Los Angeles June 21, Dallas June 26, Chicago July 18, New York City July 25, Seattle August 2, Boston I hope to see you there. Once the brochure and the relevant page of West Legalworks' website are ready, I'll post a blog item and put links up … [Read more...]

When more than one party is making a set of representations, it's commonplace for drafters to use in the representations lead-in the couplet jointly and severally, as in "The Sellers jointly and severally represent to the Buyer ... ." One also sees jointly and severally and its adjectival counterpart, joint and several, used with obligations. For example, I've seen it recommended that in … [Read more...]

In any contract, may can be used to convey two meanings. (I'm not counting the superfluous may discussed in MSCD 3.58.) May primarily serves to convey discretion, as in The indemnified party may at its expense retain separate co-counsel. But may can also be used to convey the possibility of something coming to pass, as in Acme may be subject to further litigation. Using one word to convey … [Read more...]

In this post, Rees Morrision of the Law Department Management blog notes how some law firms are helping law departments implement document-assembly initiatives. I'm glad to see that document assembly is gaining ground. But given the questionable quality of mainstream contract drafting at even the biggest law firms, I suspect that such arrangements are susceptible to GIGO. … [Read more...]

On April 11–13, the American chapter of the International Association for Contract and Commercial Management (IACCM to its friends) will be holding in New Orleans its “5th Annual Forum on Commitment Management: Shaping Change and Driving Value Through Lean Contracting.” (Click here for more information.) IACCM is an organization geared to the needs of contract-management personnel. As I looked … [Read more...]

[Go here for my most recent post on this subject, from 2016.] This blog has revisited sporadically topics that I’ve decided aren’t covered adequately in MSCD. Here’s another one—the verb include. Illustrative Versus Restrictive Including and includes have traditionally been used to introduce a nonexhaustive list. Here’s how Black’s Law Dictionary defines include: “To contain as a part of … [Read more...]

I'm generally pretty quick about following up on reader leads. But today's post relates to a reader email from almost three years ago. In this 2002 article and in MSCD 16.36 I discuss the implications of giving a written consent an as of date. Here's what MSCD says: A consent can, like a contract, be given an as of date, the purpose being to flag that the date given is not the signing date … [Read more...]

A reader passed on to me a "Commercial Contracts Newsflash" that he received from the international law firm Ashurst. It concerns Rhodia International Holdings Ltd. v. Huntsman International LLC, [2007] EWHC 292 (Comm), an English case decided on February 21, 2007, by the Queen's Bench Division. (Click here for a copy of this case; as for the Newsflash, it doesn't appear to be available … [Read more...]

A Manual of Style for Contract Drafting refers only once to the verb acknowledge. Heck, it doesn’t even merit an entry in the index. I’ll now give it the treatment it deserves. Language of Performance, Revisited I have to start by reassessing the categories of contract language. (If you just want the nitty-gritty, you might want to skip to the next section.) In MSCD I state that one of … [Read more...]

David Munn brought to my attention an interesting case dealing with how to incorporate into an agreement provisions contained in some other document. The Case The case is Affinity Internet, Inc. v. Consolidated Credit Counseling Services, Inc., 920 So. 2d 1286 (Fla. Dist. Ct. App. 2006). (Click here for a copy of the case.) Consolidated and Affinity entered into an agreement under which … [Read more...]

When you revise a draft contract, you want to be able to show the changes. You can do that using Word's "Track Changes" feature, or you can use dedicated redlining software such as DeltaView or ChangePro. I haven't yet looked at this area closely, so I'm happy to be able to steer you towards this new article by Tom Mighell and Dennis Kennedy in Law Practice Today. … [Read more...]

I'm looking for a company that would be interested in participating in a redrafting exercise that will form part of my Fall 2007 contract drafting course at the University of Pennsylvania Law School. Whenever I teach contract drafting, I have my students redraft a contract to make it comply with the recommendations in A Manual of Style for Contract Drafting. I generally use a contract culled … [Read more...]

The PDF brochure for my London, Paris, and Frankfurt seminars in April is now up. You can click here to go to it, and there are links to it from the "Public Seminars" page and from the page with the online version of the brochure. By the way, it's official: Ich bin der Guru des Drafting! … [Read more...]

Hot on the heels of last month's or case comes one about and. The article I wrote with Alan Kaye on the ambiguity of and and or was cited in Philip Services Corp. v. City of Seattle, 2007 U.S. Dist. Lexis 14906 (Mar. 2, 2007 S.D. Tex.). (Click here for a copy of this case.) The article came out all of a month ago. If there's some obnoxious competition among law school professors to see how … [Read more...]

I'm pleased to announce that I'll be giving my seminar "Contract Drafting—Language and Layout" in London on April 17, in Paris on April 19, and in Frankfurt on April 26. For more information and to register online, go to this page of my website. Why Paris and Frankfurt? As I suggest in this page of my website, I've long thought that those whose native language is not English are at a particular … [Read more...]

A recent post on the Exari document assembly blog suggests that document assembly is increasingly being used to generate business contracts. (Thanks to Dennis Kennedy for the lead.) By the way, Exari is, in their words, "an enterprise document assembly system that sets the standard for contract authoring and complex document production." … [Read more...]

Consider the following quotation: "We see partners who are doing the same work they did as associates," he says. "If they've been promoted, why should they still be writing contracts?" It's from this article in Corporate Counsel about how law departments are increasingly requiring outside counsel to implement technology. It was uttered by the director of information systems for Microsoft's … [Read more...]