Generally, if something looks like a duck and quacks like a duck, then for purposes of contract drafting it’s best to refer to it as a duck.
That sounds straightforward enough, but offhand I can think of few instances of caselaw where a court has said just that, although not in so many words. So I’m looking for some more instances.
For example, I’d be interested to know of a case where a court in any jurisdiction declined to treat something as an obligation (“Acme shall cause the Monthly Rainfall in Hoboken, New Jersey, not to exceed 50 millimeters”) because it only makes sense as a condition (“If the Monthly Rainfall in Hoboken, New Jersey, exceeds 50 millimeters, then …”).
But that’s just one example. This principle could manifest itself many different ways.
You’re deth-picable!
Ken, I love the site. This one caught my eye – years ago I was drafting a federal appellate brief, and it occurred to me the “looks like a duck” maxim captured my thought perfectly. I actually found a federal court opinion that used the statement, and cited it. Valuable precedent? Who knows. Cool? Indeed. The “bill-able” jokes ensued. Keep up the good work!