The blog post by Peter Mahler that I mention in this post about at its sole discretion offers an example of another, unrelated drafting problem.
The contract at issue required the company to exercise its option within 60 days after the later to occur of the termination date and “the final resolution of any disputes relating to such termination.” Here’s what Peter says about that:
The problem lies in its use of an indefinite, 60-day time period measured from “the final resolution of any disputes relating to such termination.” What constitutes a “final resolution”? Shouldn’t there at least be a requirement that one side or the other give notice of a final resolution to start the running of the 60-day period? And what disputes do or do not relate to the termination? There’s no certainty. It’s always better to tie the timing of an option exercise to objective mileposts.
Amen. Regarding final resolution, is raises the same sorts of issues that the phrase prevailing party does; see this 2011 post.
Go here for Peter’s post.
4 thoughts on “An Example of a Confusing Way to State a Point in Time”
Ken- A period described as from ‘final resolution’ of a dispute to ‘sixty days after’ that resolution is unclear as to both the start and end points.
Once the point of final resolution is identified somehow, language like this might work: ‘The company may exercise its option until midnight at the end of day 60, where the day on which final resolution of those disputes occurs is day zero’.
If final resolution of disputes is accomplished by a written settlement agreement signed by different parties on different days, the settlement agreement should be specific about when the agreement takes effect, since that affects when the option period ends. ‘As of’ dating (which you advise against) might cause mischief here. –Wright
“moment” — points are in space.
Thanks, but you’re mistaken.
Collins says in part for ‘moment’:
1. a short indefinite period of time ⇒ he’ll be here in a moment
2. a specific instant or point in time ⇒ at that moment the doorbell rang.
So ‘moment’ is a word to be avoided in contracts, because the difference between a point and a period is critical, and ‘moment’ muddles that exact distinction.
Also, Collins blesses ‘point in time’.