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 ___, 2010 … Read More
[Update: I offer my analysis of this issue in this 2011 post.] 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. … Read More
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. I invite you to … Read More
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 works prepared using typesetting software … Read More
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 … Read More
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 to Ninfa’s on Navigation … … Read More
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 the practise as I … Read More
“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 clause in … Read More
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 to have both perspectives. … Read More
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 FITNESS FOR A … Read More
