The word mandatory can come in handy in contracts, for example in the defined term Mandatory Conversion, as distinguished from Voluntary Conversion. But it can also be surplussage, in that if something is stated as an obligation, then necessarily it’s mandatory. That’s why I think mandatory can be omitted from the following examples: The parties [...]
I recently received the following inquiry: I was wondering if you could clarify a point for me and my boss. It has been my understanding that when defining terms in an agreement, it is standard to use the word “together” when referring to two entities only, and to use the word “collectively” when referring to three [...]
A reader asked me what I think about therefor. Here’s my equivocal answer: In MSCD 12.99 I note that here- and there- words such as herein and thereunder are dreary legalese. That’s why I use in this agreement instead of herein. But sometimes, a there- word allows you to avoid long-winded repetition. Looking more closely [...]
If you want to do business in the marketplace of ideas, you have to be prepared to repeat yourself, and you should be willing to engage in good-natured debate. So here goes: I noticed that a recent newsletter issued by the Canadian law firm Fraser Milner Casgrain contains an article on that favorite topic, the [...]
[Revised July 24, 2010 to (1) revise the meaning of Closing so that it means the same thing as Effective Time, (2) eliminate the defined term Effective Time, and (3) create the defined term Filing Date.] In this February 2010 blog post I said that the word closing is ambiguous: Does closing mean the moment [...]
You sometimes see quotation marks used to offset attachment enumeration, as in these two examples from EDGAR: “Excluded Property” shall mean those items of personal property either owned by Executive or to which Executive has exclusive rights and listed on Schedule “1,” entitled “Excluded Property,” which is attached hereto and made a part hereof. The [...]
It’s been ten days since my previous post, but it feels a lot longer—please excuse my silence. It was caused by a combination of travel, short-deadline work, and a perfect storm of technology issues: Hacked website! Viruses! Hardware malfunction! There’s nothing like spending hours on the phone with distant technicians of varying competence to take [...]
MSCD 16.29–31 deals with “rhetorical emphasis.” That’s the term I use to describe language you shovel into a contract provision to show that you really, really mean it. Every so often I encounter new examples of rhetorical emphasis. (See for example this August 2008 blog post about in all respects.) Here’s another symptom of rhetorical [...]
Parsing redundancy in contract language can get old, because it comes in endless shape-shifting forms. But a fundamental and intriguing kind of redundancy involves conjunctions. It’s high time that I consider unless and until. It features prominently in contract language. For example, 842 “material contracts” filed on the SEC’s EDGAR system in the past month use [...]
David Munn, general counsel of contracts intelligence company Pramata Corporation and longtime friend of this blog, recently alerted me to some mystery contract language. Here’s the text of a question he posted on a couple of online forums of the Association for Corporate Counsel, to no avail: I’m reviewing some proposed website terms of use [...]
In the course of rooting around online, I encountered this 2007 analysis by Morris, Manning & Martin of a Georgia Court of Appeals case, Covington Square Associates, LLC v. Ingles Markets, Inc., 283 Ga.App. 307, 641 S.E.2d 266 (Ga. Ct. App. 2007) [pdf]. Better late than never, let’s look at this case. It involves a [...]
A particularly prevalent usage is terms and conditions (and the shorthand T&Cs). Heck, it even surfaces in the everyday world—I’ve been known to throw a slipper at the TV when, at the end of a car ad, some voiceover guy drones on about how “terms, conditions, and limitations apply.” You can always do better than [...]
[Updated 12:05 p.m. EST Feb. 24, 2010] Three variations on a closing theme: Does “Closing” Refer to a Process or a Moment in Time? Does closing mean the moment a transaction is consummated? Or does it refer to the process leading up to that moment, with contracts being finalized and signed, opinions being issued, and [...]
When it occurs in contracts (apart from its use in the phrase specific performance), more often than not the word specific serves no purpose. Consider the following examples, which I harvested at random from the SEC’s EDGAR system: Within 60 days following such request for a review, the Plan Administrator will, after providing a full and [...]
Here are some follow-up thoughts prompted by reader Chad’s comment to my recent post on use of the couplet fraud or intentional misrepresentation in indemnification provisions. Chad suggested that although fraud includes intentional misrepresentation, at least three state courts have treated the terms fraud and intentional misrepresentation as synonyms. That doesn’t worry me, because if you use in [...]
The other day a law-firm partner who specializes in M&A called me to discuss the terms fraud and intentional misrepresentation. He noted that it’s commonplace for both terms to be used in specifying exceptions to limits on indemnification. Here’s the sort of provision he was referring to (I haven’t attempted to clean it up): Notwithstanding [...]
This from reader Chris Lemens: This bugs me. I see a lot of nondisclosure agreements. A typical definition of the information protected by such an agreement includes a notion that the information is “confidential or proprietary.” The “proprietary” part just seems wrong to me. So what if the information is owned as property? A company’s [...]
Today I had occasion to consider use of the phrase in particular in contracts. Here are some examples, taken from the SEC’s EDGAR system: The Company has taken all reasonable steps to maintain the confidentiality of or otherwise protect and enforce its rights in its confidential information, in particular the trade secrets owned by the [...]
Today I saw the following in a contract I pulled from the SEC’s EDGAR system: SunPower hereby guarantees that, subject to Section 22, it shall supply and deliver each of the Products to the delivery point specified in a given Purchase Order (each, a Delivery Point ) on or prior to the scheduled delivery date [...]
You may recall my September 2009 post regarding my correspondence with Glenn West on that deathless subject, the phrase representations and warranties. (If you’re new to this subject, you may want to consult this handy 558-word summary of my analysis.) Well, Glenn couldn’t leave well enough alone—today I received from him an email on the subject, [...]
A reader recently asked me about use of the phrase ceteris paribus in contracts. I was unfamiliar with this phrase—no Latin scholar I—so the first thing I did was consult Black’s Law Dictionary, which told me that ceteris paribus means “other things being equal.” I then checked the SEC’s EDGAR system, from which I learned [...]
Reader Bob Bramson suggested to me that I have a look at GTE v. Cellexis, 341 F.3d 1 (1st Cir. 2003). So I did. At issue was whether GTE could enforce its settlement agreement with Cellexis so as to preclude Cellexis from suing Cellco, a GTE affiliate that hadn’t been a GTE affiliate when GTE [...]
Yesterday I revisited the question of the relationship between a license and the contract that grants the license. This issue arose in connection with a trademark license agreement I’ve been redrafting. The original version says that the license is “nonassignable,” and I’ve been contemplating deleting that adjective on the grounds that the question of assignment [...]
Today I encountered shall never in a contract. I think it’s a form of rhetorical emphasis—you’re saying the same thing as shall not, but you’re also banging your shoe on the table. So I never say shall never.
I was reminded today how the word product can be a nuisance when drafting, for example, a license agreement providing for a royalty based on products sold. Product can be used to refer to a product line, with its own SKU, or it can mean individual samples of a product line. I use the defined [...]
The words remit and remittance occur relatively often in contracts. Black’s Law Dictionary gives as one definition of remit “To transmit (as money) (upon receiving the demand letter, she promptly remitted the amount due).” And here’s how it defines remittance: “1. A sum of money sent to another as payment for goods or services. 2. [...]
A participant at my recent seminar in Ottawa reminded me of something I’d never paid much attention to—the idea that one should draft without punctuation. It’s a hoary old notion that still lingers in Commonwealth jurisdictions. Here’s what an Australian text has to say on the subject (footnotes omitted): Traditional legal drafting uses punctuation sparingly. [...]
Warning: grammar nerdiness ahead. In license agreements I see the following two alternative constructions: Acme hereby grants Widgetco a license to … Acme hereby grants to Widgetco a license to … The second alternative represents the inferior choice. Consider the following sentences: I gave John a book. I gave a book to John. *I gave to [...]
Someone recently asked me what I thought of using the word addendum in connection with contracts. I’m not crazy about it. Black’s Law Dictionary defines addendum as “Something to be added, esp. to a document; a supplement.” So an addendum adds something to a contract, but it’s not clear whether you’re amending or supplementing the [...]
The Wall Street Journal has published this article on use of the phrase throughout the universe in contracts. And below is the accompanying video. I’m featured fleetingly in both. Most of my interview ended up on the cutting-room floor, presumably because my take on this subject was dreadfully earnest: The phrase throughout the universe, which [...]
Recently the word irrevocably attracted my attention. It means “unalterably.” And more often than not it’s redundant. That’s because generally when a contract party takes an action, it follows that absent anything in the contract to the contrary, the action can’t be undone. Consider the following example: Upon issuance of a Letter of Credit, each [...]
The word formally occurs fairly often in contracts. It appears in 994 contracts filed as “material contracts” on the SEC’s EDGAR system in the past year. Here are some examples: Lender may conclusively rely on such certificate until formally advised by a like certificate of any changes therein. All written or formally presented information, including [...]
One function of this blog is to give me a forum for screwing up without embarrassing myself too much. In this blog post from last month, I took a second crack at analyzing arising out of or relating to. Further reflection revealed that effort to be, well, lame, and I’ll be deleting it in the next [...]
I recently encountered the word draftsman in a law review article. That prompted me to give some thought to use of the word. It’s certainly commonplace—a search of the TP-ALL database on Westlaw (“All Law Reviews, Texts & Bar Journals”) retrieved some 5,000 articles written in the last three years that use it. I prefer [...]
As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather’s contract with CBS. It also featured in a New York appellate court’s opinion in CBS’s appeal of the trial court’s refusal to dismiss Rather’s breach of contract claim against CBS. At issue was the interplay of two [...]
Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I’ve come across in a long time, agrees with me on represents and warrants and representations and warranties. Below is the email [...]
It’s clear from reader feedback that I need to do a better job of explaining myself. Here goes: It’s pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties because … Because my informal inquiries indicate that most lawyers treat the elements of those phrases as synonyms, much as [...]
While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary [...]
[Updated Sept. 20 12:30 p.m. EDT: I realized that I needed to provide a more succinct version of my analysis. If that's what you're looking for, check out this blog item, which I just posted.] I’ve previously explained why the phrases representations and warranties and represents and warrants are pointless and confusing. And that applies [...]
For all my dwelling on relating to, I haven’t considered at what point something might be too remote to a given circumstance to be related to it. That, of course, is a fact-driven issue that isn’t susceptible to generalization. But it can be useful to consider examples, and Vickie Pynchon provides one in this post [...]
The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again?
[Revised 2:00 p.m. Sept. 11 to reflect comment by randomjohn] It’s commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. My first instinct was to say that is advisable and is redundant. But responding to my call for input, reader randomjohn pointed out that [...]
Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses [...]
[Update October 18, 2009: This post has been supplanted by this new post. I'll be deleting this post in the next few days.] [Revised 12:45 p.m. EDT to mention, at the end of this post, a relevant May 2009 blog post.] In my post on the AAA standard arbitration clause, I reiterated my doubts about [...]
A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material [...]
Reader Jason recently posted the following comment to my April 2007 post on including without limitation: I just ran across an instance of including with limitation XXX. I couldn’t determine if with limitation meant: only; that XXX is included, but with limitations on what parts of XXX are included; or things that are limited, and [...]
Today I noticed that someone said on Twitter that they were “drafting up a screenplay contract for legal revisions” (emphasis added). That sent me to Google, where the search ["drafting up" contract] resulted in 4,090 hits . The search ["draft up" contract] resulted in 12,900 hits, but they included a greater proportion of irrelevant results, such as “You [...]
I can’t recall ever having used the adjective contractual, meaning “of, pertaining to, or secured by a contract.” I find it an awkward mouthful. As a general matter, I’d rather simply use contract, as in contract terms and contract obligations rather than contractual terms and contractual obligations. And rather than referring to contractual instruments or [...]
A court opinion doesn’t have to come from an exalted court in order for it to raise an issue of interest to drafters generally. A case in point is Managment Strategies v. Hous. Auth. of New Haven, 2009 Conn. Super. LEXIS 1550 (Conn. Super. Ct. June 2, 2009). In that case, the following release language [...]
Thanks to reader Steven Sholk, I learned that the U.S. Supreme Court recently considered the “ordinary meaning” of the words because of. Here’s how the CCH Workday blog described the issue: Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute’s requirement that an [...]
