My recent article debunking the recital of consideration (here) explains the terms “nominal consideration” and “sham consideration” (footnotes omitted): Such a recital of consideration might seek to express what the parties have actually bargained for. If instead what is being offered wasn’t bargained for as part of an exchange, it’s a pretense. In that case, the recital is said […]
Archives for January 2016
Longtime readers will remember Andrew Godwin, Senior Lecturer in Law and Director of Transactional Law at Melbourne Law School, as I did this Q&A with him in 2012. And since then, he’s been my gracious host on my seminar trips to Australia. Given that my March “Drafting Clearer Contracts” seminars in Beijing, Shanghai, and Hong […]
In MSCD 3.248, I recommend that you not use in a contract the terms of art condition precedent and condition subsequent: In a contract, use the term condition rather than condition precedent, which conveys the same meaning but adds an unnecessarily legalistic flavor. You should never need to use condition subsequent, meaning something that, if it occurs, would […]
The week of 29 February I’ll be in the Bay Area for meetings and an in-house seminar. If you’d like to take advantage of my being in the area, contact me.
Last night I did the following retweet of a live tweet from a conference: My intent isn’t to embarrass anyone—hence my amateurish redacting of the name of the law firm that offered this advice. Instead, it gives me an opportunity to make the following points: There’s beaucoup misinformation out there. Indeed, what’s in the tweet is […]
I’m doing “Drafting Clearer Contracts” seminars in Beijing on 8 March, in Shanghai on 10 March, and in Hong Kong on 11 March. Seminar organizers in Asia tend to be coy about handing out information, as competition is fierce, but we now have a brochure, here. For all relevant information, go here.
Today, my mole buried deep in the U.S. District Court for the Northern District of California—oh all right, it was @VBalasubramani—told me about Total Recall Techs. v. Luckey, No. C 15-02281 WHA, 2016 WL 199796 (N.D. Cal. Jan. 16, 2016) (PDF here). It involves a dispute between plaintiff Total Recall Technologies (a general partnership of Thomas Seidl […]
I’ve written occasionally about principles of interpretation (also referred to as “canons of construction”) used by courts. In this post I say that “they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent.” I said pretty much the same thing in this recent tweet: People use the phrase "canon of construction" because it […]
You might recall that in this September 2015 post I discuss how Bryan Garner has defied anyone to produce a case in which including but not limited to has been held to introduce an exhaustive listing—in other words, a case in which the list following including but not limited to has been held to restrict the meaning […]
Today I noticed the following tweet by @ronfriedmann: Example of bad lawyer contract drafting. Is answer #DoLessLaw or #DoMoreLaw? pic.twitter.com/pmifezzDZ0 — ronfriedmann (@ronfriedmann) January 15, 2016 The quoted contract provision—and yes, it’s craptastic—caused me to don my full-face respirator and scurry to EDGAR, where I found lotsa contracts that use between or among the parties and […]