During a recent in-house seminar, a participant took issue with one of my sample provisions, namely This agreement terminates on August 23, 2007. The participant argued that termination entails one or more parties’ ending a contract sooner than it otherwise would have ended; he said that in this case the correct word to use would have been expires. At the time, I said something noncommittal and … [Read more...]

Last Monday I posted this blog item about how St. John’s Law Review had published a new article by me and Alan Kaye entitled Revisiting the Ambiguity of “And” and “Or” in Legal Drafting. So when I discovered, courtesy of Howard Bashman via the (new) legal writer, that the Eighth Circuit Court of Appeals had considered the meaning of or in a decision filed on February 2nd, I didn’t know whether to … [Read more...]

If you want to know more about what's involved in adding an electronic signature to a contract, I suggest that you look at this post by Dennis Kennedy. In addition to links to some useful background information, it includes a link to a post by Adobe's Rick Bornstein on creating and using signature stamps in Adobe Acrobat. My interest in electronic signatures is that of a bystander: given what I … [Read more...]

In this item that he posted on his blog last November, Wayne Schiess mentions that when he was a full-time practicing lawyer, he thought he was a good writer. He says he now realizes that he was quite mediocre and unaware of his limitations. He poses the following question: “Many practicing lawyers today believe themselves to be good writers, above average within the profession. Are they? Or are … [Read more...]

St. John’s Law Review has just published my new article, Revisiting the Ambiguity of “And” and “Or” in Legal Drafting. My co-author is Alan S. Kaye, professor of English, comparative literature, and linguistics and director of the Laboratory of Phonetic Research at California State University, Fullerton. Click here to go to a copy of the article. Here’s the abstract: Most general works on … [Read more...]

It’s high time I tackled warranty and the related verb to warrant. Here’s my first stab at this topic. Background In this Business Law Today article and this follow-up blog post I demonstrate that it’s pointless and confusing to use the phrase represents and warrants (and representations and warranties) in a contract, or at least one governed by the law of the one of the U.S. … [Read more...]

Fans of overkill—if you like from the beginning of time, you'll love throughout the universe. You can find it in rights-granting language, as in the following example (emphasis added): Client shall have the sole and exclusive right throughout the universe in perpetuity to use and exploit all or any part of the Properties and all or any part of any material contained therein or prepared therefor, … [Read more...]

Quite a few readers of this blog have signed up to be notified by email whenever I post a new item. But I suspect that there are those who find it a bit intrusive to receive an email from me once, twice, or three times a week. If that applies to you—and I know I’d find it a bit of a nuisance—I urge you to consider using a newsreader. A newsreader is a service that allows you to subscribe to … [Read more...]

I like to think that my recommendations regarding contract drafting fly under the radar—that most people who read an MSCD-compliant contract won’t find anything disconcertingly unfamiliar about it. But corporate resolutions are a different matter. (By corporate resolutions, I mean the resolutions that the governing body of a legal entity adopts to memorialize its decisions.) When it comes to … [Read more...]

Now that the holidays have come and gone, allow me to take the liberty of reminding you that my two seminars with West Legalworks are fast approaching. The seminars are entitled Contract Drafting—Language and Layout and address topics I discuss in MSCD. I’ll be in New York on February 7th and in Atlanta on March 7th. For more information, go to this blog post. If you know of anyone in the New … [Read more...]

I’ve never been fond of the phrase execute and deliver, so this weekend I took the opportunity to revisit it. My conclusions are modest enough. Here they are, in case anyone’s interested. This phrase execute and deliver (and its counterpart execution and delivery) is a standard feature of English-language contracts. As in the following obligation: The Borrower shall from time to time execute … [Read more...]

One of the joys of being a contract-drafting guy is that I don’t have to dwell on the mess that results when courts have to make sense out of contract language that’s unclear. Instead, I focus on how to avoid such problems. But it’s a good idea to look at case law every so often, if only to remind yourself of the consequences of suboptimal drafting. So I was pleased to have had occasion … [Read more...]

Today’s topic is warrants. By warrant, I mean an instrument granting the holder a long-term option to buy shares at a fixed price. (I discuss elsewhere the unrelated verb to warrant and noun warranty.) A warrant is an intangible right, but it’s evidenced by a document. Many drafters don’t bother distinguishing between the two, in that they refer to exercise of this Warrant (that is, the … [Read more...]

If you can’t get enough of the contract dispute between Rogers Communications Inc. and Aliant Inc.—the one about the comma—you should check out this article in today’s Globe and Mail. (And see here and here for my previous posts on the subject.) This article notes that the dispute has “ignited an international debate over the importance of language.” It suggests that a ruling is expected in the … [Read more...]

If you roam the law blogosphere, the odds are that you know of Dennis Kennedy, a computer lawyer and legal technology consultant based in St. Louis, Missouri. Yesterday he announced on his blog the 2006 Blawggies, his “personal and highly opinionated” selection of the best law-related blogs. In explaining his choices, Dennis says, “In general, I like to see in blogs (1) consistently useful … [Read more...]

From Imke Ratschko’s useful New York Small Business Law blog I learned about an article in Legal Technology entitled Looking Outside the Firm for On-Point Work Product. It’s by Justin Hectus, Director of Information at Keesal, Young & Logan, a 75-lawyer California law firm. In this article, the author discusses the value of retrieving, and using as forms, contracts that have been filed on the … [Read more...]

For a couple of years now, the phrase at its [or his or her] discretion has been at the back of my mind, and I’ve finally gotten around to giving it some thought. This post addresses use of at its discretion in language of discretion, as in Acme may at its discretion terminate this agreement. (I’ll deal with the other principal use in a future post.) My conclusion? Using at its discretion in … [Read more...]

I recently posted an item in which I explain why I favor disciplined use of shall, even as some legal-writing commentators recommend discarding it. As I mentioned in that post, usually will and must are offered as alternatives to shall. But I just hear of another suggested alternative: a participant in one of my Geneva seminars told me that he had been advised to use undertakes to, as in Acme … [Read more...]

"Are You Wasting Time Drafting?" is the headline of an advertisement that the American Institute of Architects placed in the December 2006 issue of the ABA Journal. This ad touts the benefits of the AIA's Contract Documents software, which was updated in November 2006. Contract Documents is a comprehensive Microsoft Word-based document-assembly program for preparing contracts for construction … [Read more...]