Here’s what I said in this 2014 post: [I]f a party that is subject to a condition is in a position to act as if the condition has been satisfied even if it in fact hasn’t been satisfied, should the issue in question instead be stated as an obligation? My answer was yes, it should. This issue is subtle enough … Read More
That post about among other things (here)? I’ll now make a similar point about etc. Using etc. is never great. It’s casual, so it unsuited to the limited and stylized world of contract prose. But more to the point, etc. is either redundant, in which case you can get rid of it, or it’s not redundant, which case it’s potentially … Read More
The phrase among other things is usually benign, because usually it’s used to refer to something treated fully elsewhere—for example, in the same contract (the first example below) or in another contract (the example under it). Attached as Appendix A is an amended and restated Schedule B to the Subadvisory Agreement setting forth, among other things, the fee that the … Read More
In this 2011 post and this 2009 post I explored using license-granting language instead of language of discretion. Here’s what MSCD says about this: Granting language is analogous to language of discretion. Consider [1-4], [1-4a], and [1-4b]. They all convey the same meaning, but granting language using the noun license, as in [1-4], offers two advantages. First, license-granting language makes … Read More
Check out this post by @ronfriedmann. It’s entitled “The Future of Contract Management.” As Ron notes, the most ambitious software, know as contract lifecycle management (CLM) software, aims to offer “end to end contract management, from drafting and negotiating, to signing and execution, to managing rights and obligations.” There’s also software that aims to tackle one or more aspects of … Read More
I’m sure you recall this 2016 post, in which I listed words and phrases used to add pointless rhetorical emphasis to a contract. Well here’s another such phrase, and it’s a beaut: it is emphasized that. Ain’t nothin more emphatic that using the word emphasized. Here’s an example: It is emphasized that the designer of the unit is not entitled … Read More
I’m in the process of revisiting the concept of “misapplied” terms of art, which I discuss in MSCD chapter 1. The idea is that it doesn’t make sense to use doctrinal terms of art in contracts if simpler terminology is available. Today’s candidate for a misapplied term of art is the noun subrogation (and the verb subrogate). Here’s the Black’s Law … Read More
Indian law schools are partial to contract-drafting competitions. As I noted in this 2011 post, I think such competitions are a good idea. Recently someone from the boutique Indian law firm TRA told me about the competition his firm was helping to run with the National Law School of India University. He asked me whether I could think of any … Read More
I had a brief exchange on Twitter that ended as follows: @ronfriedmann I was just curious if you had data to back up the claim that it doesn't work. It seems the answer is no. NBD — Rᴏʙᴇʀᴛ Aɴᴅᴇʀsᴏɴ (@ProfRobAnderson) February 19, 2017 I like to think I’m not that guy who always has to have the last word on … Read More
Go here for my updated list of 2017 “Drafting Clearer Contracts” seminars in the United States. What’s changed is that the Houston and St. Louis seminars have been moved back, to 25 May and 1 June respectively. No surprise there: the original information was posted late in 2016, leaving little time for marketing the earliest dates. I hope to see … Read More
