One can never have enough on efforts, it seems. Here are three notes on efforts. *** First, thanks to a reader tip I learned of this post on Sheppard Mullin’s Corporate & Securities Law Blog, entitled What Are “Commercially Reasonable Efforts” in M&A Transactions? Some observations. The post says as follows: New York courts have suggested that when parties fail to … Read More
Early this year I wrote about attempts to argue that changing traditional contract legalese is a bad idea, either because traditional legalese works (see this post) or because it might work (see this post). Well, I’ve encountered another article that makes the same sort of argument. In Contracts Part III: The Role of Legalese in Contract Drafting (here), published in something … Read More
A feature of traditional contract drafting is adding to provisions that already express the desired meaning usages that serve only to say, And we really mean it! I refer to that as “rhetorical emphasis.” Recently I came upon such usage, in any way. I decided it was high time that I compile a list; you’ll find it below, with an example accompanying each usage. Can … Read More
A roadblock to progress in clearer contract drafting is the dead hand of inertia. I’ve written a fair amount about it (see these posts). Over the weekend I was in the kitchen listening to WNYC when a rebroadcast of the Freakonomics “Think Like a Child” episode came on. (That episode is available here.) Below is an extract of the transcript, consisting of … Read More
My “Notes from the Road” posts aren’t intended as simple travelogue; that might be annoying. Instead, I try to tie each post to my contract-drafting-guy activities. It might be tough to pull that off when the destination was the Australian resort town of Noosa, but here goes. After seminars in Sydney and Melbourne, this past weekend I headed to Noosa, because … Read More
The other day I saw the following tweet, mentioning a post by Ruth Gámez and Fernando Cuñado: Diccionario de #ingles jurídico: «business day» vs. «non-business day» I @traduccionjurid https://t.co/r31BKQaDOV — Leon Hunter SLU (@LeonHunterSL) October 13, 2016 I realized in quick succession that (1) I hadn’t encountered the term non-business day and (2) it’s massively lame. So is non-working day. A … Read More
The phrase fails to (and its variants) is utterly standard in contracts, but you could always use instead does not (and its variants). Some grubby examples from EDGAR: The Indemnifying Party shall not be relieved of its obligations to indemnify the Indemnified Party with respect to such claim if the Indemnified Party fails to [read does not] timely deliver the Indemnity … Read More
Here from EDGAR are instances of use of the phrase definitive agreement in a contract: The Company shall have ten (10) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Investor … Read More
Here, from EDGAR, are instances of obligations being referred to as irrevocable: “Reimbursement Obligation” means the absolute, unconditional, and irrevocable obligation of the Borrower to reimburse the Issuing Bank for any drawing honored by the Issuing Bank under a Letter of Credit. The obligation of Borrower to make payments hereunder and to observe and perform all of its other obligations … Read More
The Michigan Bar Journal has just published its “plain language” issue. It includes my article Know Your Enemy: Sources of Uncertain Meaning in Contracts. It’s essentially an updated and expanded version of chapter 7 of A Manual of Style for Contract Drafting, and it offers an overview of ambiguity, vagueness, and the other sources of uncertain meaning. You can find it here. Check … Read More
