Long ago I examined the phrase time is of the essence and found it wanting. MSCD has the definitive account, but there’s also this 2009 blog post. But at a recent seminar, someone reminded me that the phrase of the essence is used not only in time is of the essence. That’s something that MSCD 13.687–88 refers to: A fixture of contract language is the … Read More
On June 26, starting at 11:00 a.m. EDT, I’ll be doing an “Ask the Expert” webinar for IACCM (International Association for Contract & Commercial Management) entitled “Optimal Contract Language and State-of-the-Art Document Assembly: A Match Made in Contract-Process Heaven.” My co-presenter will be my longtime sounding-board Tim Allen, vice-president–North America of Business Integrity, developer of ContractExpress, the leading document-assembly software. … Read More
Anyone, anyone? The online periodical Business Law Today will soon unleash on an unsuspecting world an article I co-authored. It includes the following snippet of contract language: “anyone commences an involuntary case against the Company …” Does anyone apply only to individuals? Or does it also apply to entities? In other words, we’re in effect faced with the question raised in the political … Read More
In the Broadway musical “The Music Man,” “Professor” Harold Hill poses as a boys’ band organizer and leader. He sells band instruments and uniforms to naive Iowa townsfolk, promising to train the members of a new band. But Harold is a no musician, and he plans to skip town once the instruments and uniforms are paid for. Instead of giving music lessons, … Read More
Those who consult MSCD will be familiar with the notion that it’s unnecessary and distracting to use initial capitals (“nitcaps,” to those in the know) when referring to the parts of a contracts. In other words, in cross-references the words section, exhibit, and schedule (among others) should be all lowercase. It follows that one should also use all lowercase letters … Read More
Thanks to Dan Schwartz (aka @danielschwartz), I learned of this Connecticut case. It involves an employment agreement between a town and one if its employees. The language at issue included the following: Based upon the annual performance evaluation, and at the [m]ayor’s sole discretion and recommendation, the base salary may be increased on July 1 of each fiscal year, subject … Read More
MSCD explains as follows how using the word notwithstanding in a contract can create problems: For one thing, notwithstanding operates remotely on the provisions it trumps; readers could accept at face value a given contract provision, unaware that it is undercut by a notwithstanding contained in a different provision. Furthermore, although a notwithstanding clause that refers to a particular section … Read More
This week I’ve had the distinct privilege of doing two back-to-back day-long “Drafting Clearer Contracts” seminars at De Brauw Blackstone Westbroek, the prominent Netherlands law firm. (I just wrapped up the second seminar.) In that regard, consider the following: De Brauw’s very handsome auditorium seats one hundred (see the photo below), but demand for the seminars exceeded the space available. … Read More
Last week I noticed this tweet by @BlakeReagan2: https://twitter.com/BlakeReagan2/status/472438086580707328 It has been a while since I’ve used contract as a defined term, so I grabbed the following examples at random from the U.S. Securities and Exchange Commission’s EDGAR system: “Contract” means all legally enforceable contracts, agreements, understandings, arrangements and commitments, whether written or oral, excluding Purchase Orders. “Contract” means any … Read More
