Another day, another unexpected contract usage.
Today, I saw the following:
Upon issuance of an oral or written work, service, or purchase order, Company thereby hires Contractor to promptly provide the products, materials, and supplies and perform the services set forth in the Order.
What caught my eye was the use of thereby. It raises the issue of […]
When in my seminars I discuss the phrase including without limitation, I’m sometimes asked what I think of for example. Here’s my answer: Don’t use for example in contracts to introduce lists of items, but by all means use it to introduce illustrative scenarios.
First, let’s consider including. It can be used to introduce a list […]
The second edition of A Manual of Style for Contract Drafting has been out for less than two months, and we’ve already sold almost all of the first printing. So the response has been positive, to say the least.
But I’d appreciate your input on MSCD’s binding.
The first printing used “Wire-O” binding, like that used for […]
The lead item in the September 2008 YourABA, the ABA’s e-newsletter for members, is a Q&A with yours truly. Click here to go to it. Regular readers of this blog will not be astonished at what I have to say.
[Updated October 1, 2008]
Consider the following provision:
During the term of this agreement and the following 24 consecutive months, the Consultant shall not …
In this context, the word consecutive is redundant. The same applies to use of consecutive with other units of time.
But consider this provision:
The Employee shall spend two months every year in Acme’s Budapest […]
I’ve kicked the tires of a good number of information-technology tools aimed at making the contract process more efficient, but I hadn’t encountered a product that aimed to simplify the task of reviewing a contract drafted by the other side in a transaction.
That changed when I was contacted last week by Scott Soloway, founder and […]
MSCD 3.38 invites readers to request a free 30-day trial of the Numbering Assistant, the paragraph-numbering tool developed by Payne Consulting Group that allows you to quickly and simply apply one of the two flavors of the MSCD enumeration scheme to any contract in Word.
Well, Payne Consulting Group is finally in a position to respond […]
The September 8, 2008, issue of the National Law Journal contains my opinion piece “Dysfunctional Drafting.” Click here to go to the online version.
By the way, check out the little illustration accompanying the piece.
For most of us, using document-assembly to draft contracts remains an apparently distant prospect. But for some, it’s a fact of life.
For example, I’ve previously mentioned the AIA’s Contract Documents system. Well, document assembly is sufficiently accepted in the construction industry that it now has a competitor, ConsensusDOCS.
But a particularly interesting example of document assembly’s […]
It’s uncanny how the following Dilbert cartoon strip captures perfectly my feelings regarding the language and process of mainstream contract drafting. Thanks to the (new) legal writer for spotting it.
I just learned that students are entitled to a 40% discount on A Manual of Style for Contract Drafting if it’s assigned reading for a law-school class.
If you’re a professor and would like to find out more (no students, please!), click here to send an email to Katrina Krause of the ABA.
Comments to my recent post on granting language in a license alluded to the case of Jacobsen v. Katzer (Fed. Cir., Aug. 13, 2008). I’d like to pick up on something mentioned by commenter Chris—the court’s discussion of provided that.
This case involved the language of an “open source” copyright license. The license granted users the […]
Here’s a generic bit of granting language from a software license agreement:
Acme hereby grants Widgetco a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to the Software (that license, the “License“).
I’m not a licensing guy, so it is with some trepidation that I ask the following question: Are such adjective-heavy formulations really the best alternative?
As […]
The ABA Web Store now has in stock copies of the second edition of A Manual of Style for Contract Drafting. Click here to go to the relevant page. And note that the ABA is offering free ground shipping through the end of August. The ABA is currently the only place you can purchase the […]
At a CLE session at the ABA annual meeting I learned of LaPoint v. AmeriSourceBergen Corp., No. 327-CC (Del. Ch. May 1, 2007), a Delaware Court of Chancery case that offers an interesting instance of mistake.
The case involved a dispute over an acquisition earnout. AmerisourceBergen had agreed to acquire Bridge Medical Inc. for $27 million […]
Here’s another entry in the rhetorical-emphasis hall of shame—in all respects. Here’s an example:
This agreement is in all respects governed by Minnesota law.
By omitting in all respects you lose nothing except surplus words. The same goes for in all material respects—use instead materially, but remember that it’s ambiguous. (For more on that, see chapter 8 […]
People who attended certain of my recent public seminars received a copy of the first edition of MSCD just as it was about to be made obsolete. So I’m making the second edition available for $25—one third the regular price—plus shipping to those who participated in the following public seminars:
April 1, 2008 seminar in Vancouver […]
If you’re attending the 2008 American Bar Association annual meeting and you’re in a contract-drafting frame of mind, here’s what I’ll be doing there:
Thursday, August 7, 2:00PM–3:30PM, “Meet the Author,” ABA Source, Hilton New York (Second Level of the Conference Area), 1335 Avenue of the Americas
Friday, August 8, 2:30PM–4:30PM, Panel Discussion, “Getting the Business Deal into […]
In this post on his Law Department Management blog, Rees Morrision—prolific consultant to law departments—quotes a survey in the July 2008 issue of Inside Counsel as saying “33.5% of in-house counsel reported that law firm services are a commodity.”
Here’s Rees’s take on this:
Loyalty rates of law departments to law firms suggest otherwise, and incessant fee […]
In this post on his Goldman’s Observations blog, Eric Goldman describes a dispute between FaceTime Communications and Reuters.
Reuters licensed FaceTime’s software for two years and devoted significant resources to customizing the software. Reuters had an option to pay $150,000 for a perpetual license, but for reasons that aren’t entirely explained, Reuters didn’t exercise the option […]
Eric Goldman recently sent me the following inquiry:
A typical vendor’s contract will say something like “Customer shall pay invoiced amounts within 30 days of invoicing.” With some frequency, customers have been marking up this language to read: “Customer shall pay *UNDISPUTED* invoiced amounts within 30 days of invoicing.” From a vendor’s perspective, I think the […]
Through this post by Michael Fleming on the Cyberspace Lawyer’s Blogger, I learned that the Cyberspace Law Committee of the ABA Section of Business Law is proposing to draft new model contracts. This project sounds interesting:
The Liberty Alliance Project is, in its own words, working to “enable a networked world based on open standards where consumers, citizens, […]
For those who like planning in advance, here are my West Legalworks seminar dates for 2009:
Feb. 24, Houston
Mar. 3, Atlanta
April 9, Cleveland
May 7, Chicago
June 2, Philadelphia
July 16, Seattle
Sept. 15, Los Angeles
Sept. 24, Washington, D.C.
Oct. 13, Minneapolis
Oct. 27, Boston
Nov. 17, New York
Dec. 8, San Francisco
I’m pleased that West Legalworks opted to re-up for another year. That […]
The May 2008 issue of The Business Lawyer contains a great article by Glenn D. West and Sara G. Duran of Weil Gotshal entitled “Reassessing the ‘Consequences’ of Consequential Damage Waivers in Acquisition Agreements.” Click here for a copy.
Here’s the abstract:
Consequential damage waivers are a frequent part of merger and acquisition agreements involving private company […]
I have a soft spot for nondisclosure agreements, or NDAs (also known as confidentiality agreements): They’re relatively short and straightforward, yet they’re subtle enough that drafters routinely screw them up. And they’re commonplace; in fact, they’re something of a nuisance—the cockroach of the contract-drafting world. These characteristics mean that they’re the obvious guinea pig for […]
A common feature of M&A contracts is the “earnout” provision—a provision that specifies that the purchase price will be increased if the business being acquired meets, post-closing, stated financial-performance targets.
If you’re interested in earnout provisions, of if you’d just like to see yet one more example of how lackadaisical drafting can result in litigation, you might […]
Thanks to the litigation in Lawler Mfg. v. Bradley Corp., recently I discovered the nuances of such as. That led me to write about such as in this post.
Yesterday I received a message from Wayne Turner, a litigation partner in the downtown Indianapolis office of Bingham McHale. I enjoyed Wayne’s message, and I thought you […]
Publication of the second edition of A Manual of Style for Contract Drafting is fast approaching. One sign is that a page for the book is now up on the ABA’s Web Store. (For the first six months, it will be available only through the ABA.) Check out the sharp new cover!
Even more to the […]
A reader recently asked me the following question:
We frequently sign global services agreements that provide that the parent company is signing “for and on behalf” of an affiliate. What do you think of this practice?
I’m uncertain about having a parent sign a contract on behalf of an affiliate. (In any event, the words “for and” […]
Here’s what Garner’s Modern American Usage has to say about anniversary:
anniversary (= the day of the year on which an event occurred in a previous year) is today used informally to denote a milestone in months or even weeks. That usage has become increasingly common, perhaps because there is no convenient equivalent for terms shorter […]
On July 17 I’ll be in Seattle giving my West Legalworks seminar. Afterwards, starting at 5:00 p.m., I’ll be meeting a few friends for drinks at the restaurant Sazerac, at 1101 Fourth Avenue, at the corner of Spring Street. It’s a few blocks from the Grand Hyatt, where the seminar is being held. If you’re in […]
Maybe it’s sunspots. Or something in the water. At any rate, another second edition of a book related to contract drafting has just been published. This time it’s Charles Fox’s Working with Contracts: What Law School Doesn’t Teach You. (Click here to go to the Amazon page. Note that Amazon’s a little confused, in that the cover […]
Normally I wouldn’t dream of going public with thoughts on writing in general. A vast number of people have busied themselves with that topic, so there’s no chance of my having anything novel to say. I regularly give thanks to the gods of writing that I’ve been given the near-virgin territory of contract drafting to […]
Once in a long while I see a template contract that uses Word’s line-numbering feature to include line numbering in the left margin of each page.
The idea, obviously, it to allow anyone involved in drafting or negotiating a contract based on the template to pinpoint language at issue—Let’s strike the word “material” on page 46, line […]
I said in this blog post that I planned to do a post about Deal Proof. Well, here it is.
Deal Proof is a Thomson West product; click here to go to the relevant page of the Thomson West website. It’s a document-analysis and proofreading tool that many of the big firms subscribe to. It checks […]
FYI, I’ll be on the panel for a CLE session at the ABA 2008 annual meeting, which is being held in New York. The topic is “Getting the Business Deal into the Contract—Choosing the Right Words.” It’s being held at 2:30 p.m. on Friday, August 8. Also on the panel will be Tina Stark, professor […]
In this post I described how I had heard someone cite by name some companies and one law firm—a multi-office U.S. law firm—that had foresworn use of shall. Well, recently I had the privilege of giving a series of seminars at that law firm, and I was tickled to be able to ask two senior […]
If you say that something has to be satisfactory to Acme, the standard might be an objective one, in that it would be met if a reasonable person in Acme’s position would be satisfied. Alternatively, it could mean that Acme actually has to be satisfied, subject only to the implied duty of good faith—the standard […]
Law firms could take a number of steps to put their contract drafting on a more rational footing. They could adopt a contract-drafting “house style” that recommends usages to employ and usages to steer clear of. They could offer rigorous training. And they could implement a centralized template initiative, maybe even one that makes use […]
West Legalworks would like me to do webinars for them. I’m open to the idea.
I could do a series based on MSCD—maybe eight one-hour webinars. They’d be done live and then would be available on demand. Would doing MSCD webinars cause me to lose seminar business? I don’t think so. If you come to my […]
I’m back after a three-week break from blogging. I’m not exactly refreshed, as I was traveling hither and yon doing seminars and, during down time, reviewing page proofs of the second edition of MSCD.
I have a relatively tranquil summer ahead of me, so I’ll be recharging my batteries, mainly by turning to man-about-the-house duties that I’ve […]
With age, birthdays become less important, so it shouldn’t come as a surprise that on the second anniversary of this blog (give or take a few days) I’m less inclined to wax lyrical than I was after the first anniversary. But a few stray thoughts come to mind:
I pay little attention to my blog’s statistics. […]
Such as is ambiguous—it might be unclear whether the clause it introduces serves to reduce the scope of the class represented by the preceding noun. This can result in contract disputes.
Consider the following sentence:
Richard collects books about painters such as Botticelli and Donatello.
Given the general nature of the class in question (painters) and the narrowness […]
This past Friday and Saturday I was in Atlanta, at Emory Law School’s conference on “Teaching Drafting and Transactional Skills: The Basics and Beyond.” (Click here to go to the relevant page of Emory Law School’s website.)
The conference was organized by Tina Stark, an Emory professor and the executive director of the school’s new Center for […]
In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause:
the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial […]
A couple of months ago, reader Kent asked me what I thought about using parentheses in contracts. Here, belatedly, is my answer:
In regular prose, parentheses (namely round brackets, like those enclosing these words) are used to offset text that constitutes an explanation or aside. The limited and stylized prose of contracts is generally not the […]
Reader David recently posed the following question:
I have a question for you that has bugged me for several years. From time to time, my company shares company-related information with a third party and, before doing so, enters into a confidentiality agreement (CA) [also known as a nondisclosure agreement—KAA] with the third party. Our CA has […]
Reader Steven Sholk sent me a case today. I found it of interest, but not for the reason he anticipated.
What caught my eye was the phrase during continuance of this agreement. A search of the SEC’s EDGAR database showed that it’s not a complete rarity: it occurs in about 200 contracts filed in the past […]
Reader Larry Bell pointed out to me that the April 2008 issue of Corporate Counsel’s Quarterly contains an article by the publisher’s editorial staff entitled “Best Efforts Clauses.” I’m afraid that I can’t provide a link, as I have only a hard copy.
When it comes to guidance on drafting usages, I’m not particularly a fan […]
I recently posted this item discussing Lexicon, a tool for organizing and checking defined terms. Lexicon’s website contains a page discussing “The Seven Deadly Sins of Defined Terms.” Among the sins described is the following:
Overlapping Definitions–When one Defined Term is contained within another, confusion can arise. For example, if (1) “Company,” (2) “Company Promissory Note,” […]
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