At one of my recent European seminars I told the participants that I’m not in favor of the approach to document design that says that as soon as you have two distinct thoughts in a contract provision you should enumerate them and tabulate them. (For more about that, see this 2013 post (eighth paragraph) and this 2012 post.) But, said one of … Read More
[Updated May 2, 2013: Well, my readership has proved immune to the attractions of half off ten copies of MSCD. Tough crowd! Anyway, thank you for indulging me in this experiment.] I’m offering up for auction one lot of ten print copies of the third edition of A Manual of Style for Contract Drafting. I’ll be paying all proceeds to … Read More
I’ve updated this site’s page on my in-house seminars to note that I’m now offering a one-hour presentation entitled “The Bad (and Good) News About Contract Language and the Contract Process.” Here’s the description: In addition to his seminars, Ken offers a one-hour presentation on problems with traditional contract language and the traditional contract process and how organizations can address those … Read More
A few days ago a reader asked me about a recommendation he saw online to the effect that it might be a good idea to use a footnote to explain why a negotiated contract provision had been written in a particular way. And another reader just asked me about using footnotes in a contract. Someone in his company had proposed … Read More
In modern discourse, it’s increasingly important not just to be right, but to be seen to be right. There’s no shortage of people offering, online, debatable interpretations of contract-drafting issues. And every few weeks, another questionable analysis is added to the pile. That increases the clamor in the marketplace of ideas, with the result that it’s harder to distinguish good ideas … Read More
Utmost? WTF! Here are some examples of use of utmost in contracts on EDGAR: … provided that the party so affected shall use its best efforts to avoid or remove the cause(s) of non-performance and observance with utmost dispatch. A Seller’s agent or subagent has the following affirmative obligations: (1) To the Seller. A fiduciary duty of utmost care, integrity, honesty, and loyalty in … Read More
I noted with interest Neal Goldfarb’s recent post on LAWnLinguistics about an amicus brief that he filed with the U.S. Supreme Court. His brief concerns the word because, and here’s the gist of the issue addressed: In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the … Read More
I’ve just left Hamburg after a three-day visit. Some thoughts: I held public seminars on Monday and Tuesday at the offices of ECE Projektmanagement, the shopping-center developer. My host was the exceedingly gracious Joachim Kämpf, of ECE’s legal department. He’s a veteran of one of my 2012 Geneva seminars. Last Sunday, Joachim gave me a walking tour of downtown Hamburg. As … Read More
You’ve been asked by Acme to draft an employment agreement for Jane Doe, Acme’s new head of sales. As part of his muttered instructions to you, Roger Roe, Acme’s general counsel, says, “Oh, and Jane should work out of our Budapest office a couple of months a year.” It’s a simple idea, but some issues spring to mind. Allow me … Read More
You see confirms used to introduce statements of fact in a contract. Here are two examples from EDGAR: Each Loan Party (i) confirms that prior to, as of, during and following the funding of the Commitment, each Loan Party was not, and continues not to be, “insolvent” as that term is defined in Section 101(32) of the United States Bankruptcy … Read More
