Month: March 2014

A Dispute Involving “Either … Or”

Thanks to this post on Peter A. Mahler’s New York Business Divorce blog, I learned that in a recent opinion of the New York Supreme Court (despite the name, a lower court), a judge considered the implications of either … or. I wasn’t about to let that pass without chiming in—regular readers will know that I have a thing about … Read More

“With Respect To”

After last Thursday’s “Drafting Clearer Contracts” seminar in Dallas for West LegalEdcenter, I had the pleasure of having dinner with longtime reader and commenter Chris Lemens. He asked me about with respect to. This one’s for you, Chris. According to Garner’s Modern American Usage, “The phrases with respect to and in respect of are usually best replaced by single prepositions.” … Read More

Resources on Drafting Consumer Contracts?

A reader asked me whether I could recommend any MSCD-ish resources on drafting consumer contracts. The short answer is that I’ve never looked for any such resources, although I recall that the 1981 book Writing Contracts in Plain English was a pioneering work in this field. Readers, can you recommend anything? I’ll now attempt slightly longer answer. I think that much … Read More

Actually, a Contract Is No Place for the Word “Actually” (With One Exception)

The word actually doesn’t have many friends. Commentators think it’s overused; see this article by Claire Carusillo in the New Republic and this article by Heidi Stevens in the Chicago Tribune. But in contracts, the problem with actually goes beyond overuse. In general discourse, actually, meaning “in fact,” signals difference of opinion or disagreement over facts. Contracts aren’t for debating, so as a … Read More

“Limitation”

There’s always something that needs fixing. Yesterday, I was inclined to carve on my forehead, in mirror-script, “Stop using limitation instead of limit!” Consider the following from Garner’s Modern American Usage: limit; limitation. A limit is whatever marks an end to something, as in city limits or speed limit. A limitation is the extent of one’s capacity or a constraint that … Read More

What Does “Client” Mean? It Depends on the Timeframe

When you refer to something in a contract, the meaning can vary depending on the timeframe. For example, MSCD 13.4 and this 2009 post discuss how a contract reference to “subsidiaries” could mean subsidiaries at the time of signing or at any given time in the future. It’s best to avoid confusion over the intended meaning by making it explicit. … Read More

“In and To”

I received the following inquiry from longtime reader Vance Koven: I’ve been trying to find someplace in MSCD or your blog where you address the couplet “in and to,” which usually dribbles out after “right, title and interest” in referring to, say, a claim to or a license of intellectual property. Came up empty, yet I was sure it was … Read More

Extraneous Language of Declaration

In contracts, language of declaration is used by parties to declare facts. And as I say in MSCD 3.270, “Language of declaration allows parties not simply to assert facts but to be seen to be asserting them—without the verb, it wouldn’t be clear who is making the assertion.” Language of declaration comes in two flavors, depending on whether the fact … Read More

Expanded Language of Recommendation

One of the categories of contract language is language of recommendation. It’s discussed at MSCD 3.332, and I introduced the idea in this 2011 post. Obviously enough, you use it when one party is recommending something to another party: The Company recommends that the Participant consult with his or her personal advisor …. I’ve always though that language of recommendation … Read More

Ethics: Drafting Templates for Two Clients in the Same Industry

Here’s an issue I’ve occasionally pondered: What if you prepare a template for one client in a given industry, and then another company in the same industry asks you to prepare the same kind of template for them? It’s not a matter of copyright. Here’s the relevant extract from my article Copyright and the Contract Drafter (here): [T]he level of … Read More