I’d like to revisit something discussed in MSCD—how one states warranties relating to, for example, goods yet to be delivered. Consider the following: Acme warrants that the Units will be free from defects when shipped from Acme’s plant. That’s standard warranty language, with Acme stating “future facts,” to use warranties-doctrine lingo. Well, in terms of semantics, I’m not keen on the notion … Read More
I’m in the habit of dividing the task of contract drafting into determining what to say and how to say it. But that’s not to suggest that they represents separate tasks. Instead, they’re two ends of a spectrum, as how you say something can affect what you say in unexpected ways. And you work on both aspects concurrently. But I’d … Read More
Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a PDF copy.) It has a lesson to offer regarding how to avoid confusion over whether contract terms apply to changed circumstances. Marketing company SuperMedia had a contract with Yellow Pages Photos, Inc., a provider of stock … Read More
In the early days of my rummaging through the entrails of contract language, I logged a lot of time with the second edition of Bryan Garner’s Dictionary of Modern Legal Usage. My recent visits have been fewer, but I did turn to the third edition, now called Garner’s Dictionary of Legal Usage, to see if it had anything to say … Read More
In March I’m going to Beijing and Shanghai to give public (here) and in-house “Drafting Clearer Contracts” seminars. [Updated 22 February 2016: I’m going back in March 2016; for more information, go here.] I’ve never been to mainland China, so it makes sense that I should prepare. I figured that in addition to learning how to get from the airport … Read More
Gee, did I miss the announcement that it was “Free Contracts Week” on the blawgosphere? First there was this article on Tech Crunch by @ddoktori. That spawned this post by @carolynelefant on myShingle, this post on Above the Law by @josephpatrice, and this post on Forbes by @basharubin. I’ll add my six cents’ worth about making form contracts or, even better, … Read More
Recently I read a contract that contained scattered search-and-replace glitches. In attempting to remove identifying information, someone had searched for one of the party-name defined terms and replaced it with something generic, with unintended consequences. I can’t tell you the exact change they made, but it’s as if they had replaced Signa with Vendor and had created as a byproduct scattered … Read More
A little birdie told me about the opinion of the Quebec Superior Court in Cemar Electro Inc. v. Grob Textile, A.G., 2014 QCCS 5814. (Go here for a copy.) In a contract with plaintiff Cemar, defendant Grob promised to “use its best efforts to advertise and promote the sale of the Products in the Territory and to make regular and sufficient contact … Read More
Each of the following extracts from EDGAR exhibits the same problem: For purposes of this Agreement, “Eligible Plan Assets” mean total Plan Assets (including assets invested in American Funds and other mutual funds or investment options approved for use in PlanPremier), excluding … “Moral Rights” mean any rights to claim authorship of or credit on an Assigned Inventions … For purpose of … Read More
Behold the following: Nothing in this agreement gives either party a license or other right to use the trademarks … If the idea is that neither party is allowed to use the trademarks in the specified manner, say so: Each party shall not use the trademarks … For one, it’s shorter. And second, if you say “Nothing in this agreement gives” … Read More
