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 terms [...]
Contrary to reputation, I’m not just a dry-as-dust, express-the-meaning-of-the-parties guy. I have a sensitive, truth-and-beauty side too. And to demonstrate that, I now bring you—cue tasteful music—the first AdamsDrafting art exhibit!
It showcases the work of Russell Christian, a talented illustrator. And it was made possible by that noted patron of the arts, Business Integrity, developer [...]
I generally explain the concept of ambiguity by saying that if reasonable people read a given contract provision and derive different meanings from it, that provision is ambiguous.
But that doesn’t quite capture the problem that alternative meanings pose for the contract drafter. It’s not only the reasonable reader that you’re worried about. Instead, you’re worried [...]
I launched this site in 2006, and recently it’s been showing its age. That’s not entirely due to sloth on my part, as getting anything adjusted had become a protracted annoyance. So recently I engaged web designer Tom Leadbetter, and here’s what we did:
The left-hand column is wider, to take into account that people have been migrating [...]
I’m attuned to the particular challenges facing anyone who isn’t a native English speaker and is required to draft or negotiate contracts in English. Indeed, my site contains this note on the subject. I was recently reminded of this issue in a number of ways.
First, I exchanged emails with a reader in Asia. Here’s what [...]
Today’s issue of the New York Law Journal contains my article “The AAA Standard Arbitration Clause: Room for Improvement.” Click here to go to a pdf copy. (It’s also available here if you subscribe to the New York Law Journal.)
It was fun to write, and here’s why:
I got to revisit a topic, arising out of or [...]
In this May 2007 blog post I mentioned the dispute between Crusader Entertainment and schlockmeister Clive Cussler. In this post, the ContractsProf Blog provides the latest installment in this gripping saga—an opinion by a California appellate court.
Here’s the bit that caught my eye:
On the key issue in the appeal, the court found that Cussler had [...]
My recent post on stand-alone purchase orders prompted a related thought:
When you issue a stand-alone purchase order (in other words, one not issued under a master contract), you could incorporate the general terms (in other words, everything that doesn’t relate to deal-specific matters such as product and price) in different ways. You could include them [...]
You sometimes see a contract that has a paragraph entitled “Acknowledgement” added at the end, after the party signatures.
For example, a search on the SEC’s EDGAR system quickly retrieved this document, a “forebearance agreement and amendment to indenture” between Gulfstream International Group, Inc. and Shelter Island Opportunity Fund, LLC. Here’s what came after their signature [...]
I received the following inquiry from a reader:
As you know, goods or services can be purchased by means of purchase orders issued under a master contract or by POs that aren’t issued under a master contract—I’ll refer to the latter as “stand-alone” POs. They can be issued for one-off purchases or on a regular basis [...]
After chewing over the comments to this post on excluding consequential damages, I’m left with the following thoughts:
I remain of the view that putting a cap on damages is the simplest and least contentious way to limit damages. And it can make excluding certain kinds of damages less relevant, or even entirely irrelevant. Whether a [...]
It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to [...]
Without any editorializing by me, here’s an extract from this article by Sathnam Sanghera in the Times Online:
On the one hand, written agreements protect parties if things go wrong and provide a useful framework for engagement. But, on the other, drafting contracts slows business down—something Stephen Covey emphasises in The Speed of Trust: The One [...]
[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 funds being sent [...]
In this January 2008 blog post I noted that the requirements for what constitutes a “contract under seal” have been relaxed to the point of ludicrousness. But I also noted that in some states whether a contract is under seal has a bearing on which statute of limitations applies.
From @Richards1000’s prolific Twitter outpouring I learned [...]
Thanks to the Legal Writing Prof Blog, I learned of an article entitled “The Ethics of Contract Drafting.” It’s by Gregory M. Duhl, associate professor at William Mitchell College of Law. It will be appearing in the Lewis & Clark Law Review, but for those who can’t wait, it’s available on SSRN by clicking here. Here’s [...]
One of the chapters of MSCD that I sweated most over was chapter 10, “Ambiguity of the Part Versus the Whole.” Here’s the first paragraph:
Use of plural nouns and the words and, or, every, each, and any can result in ambiguity. In each case, the question is whether it is a single member of a [...]
[For a follow-up to this post, see this March 2, 2010 blog post.]
I have in front of me a contract—it’s for the sale of goods—that contains the following provision excluding certain kinds of damages:
Neither party will be responsible or held liable for any consequential, special, or incidental losses or damages.
You can rely on sellers asking [...]
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 fair [...]
Longtime readers of this site will be familiar with the name Business Integrity, developer of ContractExpress (formerly DealBuilder) document-assembly software.
Fixing contract drafting involves fixing not only language but also process, and fixing the process means using document assembly. So I’ve long had a keen interest in document assembly. About three years ago I became acquainted [...]
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 [...]
Today I came upon yet another article exploring law students’ lack of basic writing skills: Aïda M. Alaka, The Grammar Wars Come to Law School, 59 J. Legal Educ. 343 (2010). (Click here to go to a pdf copy.)
Professor Alaka notes that “many, if not most, legal writing instructors have been surprised by the sometimes [...]
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 the above, [...]
The following is from this article by Drew Combs on the AmLaw Daily:
Latham & Watkins and Manatt Phelps & Phillips are the targets of a malpractice lawsuit filed by ECC Capital Corp., which accuses the firms of botching a deal to sell its mortgage-origination business and a subprime-loan portfolio to Bear Stearns & Co.
…
In the [...]
On the Law Technology News website is “The Law of Unintended E-Consequences,” an interesting article by Stanley P. Jaskiewicz, a member of the Philadelphia law firm of Spector Gadon & Rosen. It discusses how boilerplate that is easily skimmed over can end up acquiring unexpected significance.
The article mentions me, but that’s not how it came [...]
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 website [...]
Last week I was at West’s headquarters in Eagan, Minnesota, with a dozen or so journalists and bloggers, attending a series of presentations on WestlawNext, the next generation of Westlaw. After some five years of development, it’s being launched today. Others who were in Eagan with me have already offered their thoughts on WestlawNext. I [...]
The following oddity from a reader:
When is an amendment not an amendment? When it’s a separate agreement!
From the introductory paragraph of a supplier’s attachment to another agreement:
IMPLEMENTATION ASSISTANCE AMENDMENT NUMBER ONE TO BASIC LICENSE AGREEMENT NUMBER [redacted] CUSTOMER: [redacted]
This Amendment, together with the terms and conditions contained int he Basic License Agreement, dated January ___, [...]
Chadwick Busk of The Fine Print blog told me about this item on Lexology (free registration required) by Patrick T. Sharkey of Jackson Walker LLP. I hope Patrick doesn’t mind if I quote extensively from it:
A recent Texas Supreme Court decision highlights the importance of thoughtful drafting. In Intercontinental Group Partnership v. KP Home Lonestar [...]
Yesterday I spent the day at West’s headquarters in Eagan, Minnesota, with a dozen or so journalists and bloggers being introduced to WestlawNext, the next generation of Westlaw. More about that next week, when WestlawNext is launched.
But kicking the tires of WestlawNext caused me to consider how computer-assisted legal research is used in contract drafting. [...]
In chapter 15 of MSCD and in this May 2007 post (which has attracted 32 comments) I explain why using ragged right margins makes word-processing documents easier to read. It’s a no-brainer—you may think that full justification looks “professional,” but typography experts are unanimously in favor of ragged right for word-processing documents. (Books and other [...]
Via Twitter, I came across a blog post entitled “Effective Contract Drafting: A Subversive Manifesto.” It’s by William Carleton, partner at a Seattle law firm.
It begins as follows:
It’s always best to say what you mean as clearly and as simply as you can, right?
Maybe.
…
Ambiguity, however, is indispensable to the drafter of commercial contracts.
At this point [...]
If you’re the sort who routinely rummages in the entrails of commercial contracts, you might well find of interest D.C. Toedt’s website On Technology Contracts.
D.C. Toedt (pronounced “Tate”) is a business lawyer with an intellectual-property and software-law background. He’s in private practice in Houston; I owe him a debt of gratitude for having introduced me [...]
Yesterday I gave another of my Osgoode Professional Development seminars in Toronto, to a sellout crowd of eighty. During a break I discussed with one of the participants what to call the components of the body of the contract. In a follow-up email, here’s what she had to say on the subject:
As discussed, in England [...]
“Definedtermitis” is a condition caused by excessive reliance on defined terms. It causes clogging of the arteries of your contracts. Those who succumb to it are referred to as “definedtermites.”
Consider an email I received today from a reader:
OK, so I thought it was a typo, but it turns out it was intentional.
I was reviewing a [...]
It’s not only transactional types who are interested in contract language. If you want to see how a different online ecosystem approaches the subject, I suggest you have a look at this post on Language Log and the related comments.
I like to think that I stand somewhere between the linguists and the lawyers. It’s good [...]
Rarely do I have occasion to offer thoughts on drafting under article 2 of the Uniform Commercial Code, which applies to sales of goods.
Here are two warranty disclaimers from some equipment purchase agreements I’ve been reviewing:
NO OTHER WARRANTY TO CUSTOMER FROM SELLER IS EXPRESS OR IMPLIED. SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND [...]
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 Company.
Each [...]
I’m looking for caselaw or commentary on the following issue relating to the parts of a mergers-and-acquisitions contract.
If a buyer wants to address in an M&A contract circumstances that are under the seller’s control—for example, whether the seller is in good standing under Delaware law—it would make sense to do so by means of a [...]
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 therefor [...]
Currently on my nighttable is Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, by Steven Davidoff.
Steven is a professor at the University of Connecticut Law School (click here for his faculty bio page) and is the New York Times’s “Deal Professor.” Before teaching, he practiced for ten years with Shearman [...]
December is when the American Bar Association tells its authors how their books did during the year that ended the previous September 30. So a couple of weeks ago I heard how the second edition of MSCD fared during the year starting just four months after its publication in July 2008.
Publishers and authors are notoriously [...]
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 that of [...]
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 and [...]
A few readers let me know about a Minnesota bankruptcy court judge who issued a set of guidelines for lawyers submitting proposed orders to him. Included was a request that lawyers limit their use of capitalization. For more information, see this post on Lawyerist.com.
My first instinct was to assign this to the wrong side of [...]
Recently I’ve been having more discussions with companies regarding redrafting their templates.
In particular, I recently responded to an RFP (“request for proposal”) from an international company that wanted to redraft its commercial-contract templates. I lost on price, which is frustrating, but this exercise provided a useful introduction to the realities of the no-discussion, and-the-winner-is nature [...]
I learned from this post on Language Log that use of commas in a provision of the Bankruptcy Code has become an issue in the bankcruptcy case of the Philadelphia News. Being a veteran of comma-related strife myself, I have a soft spot for such matters.
But prevailing in any comma dispute comes a distant second-best [...]
I’m prone to suggesting that the dysfunction in mainstream contract language can largely be attributed to the precedent-driven nature of transactional work. But perhaps another factor plays a supporting role. (Caveat: what follows is semi-informed speculation.)
I suspect that a large majority of analytical materials relating to transactional work are prepared by practitioners. And of those [...]
Two items I posted today considered the format of page numbers and use of logos in headers and footers. And comments to this October 2009 post alluded to putting file names in the footer. So I got to thinking about other things that can go in headers and footers.
I’ve sometimes seen the notation “Confidential” in [...]
