Today I saw the following in a contract on EDGAR (emphasis added): Owner shall provide Contractor notice (which may be oral or by electronic means) of such non-compliance and Contractor shall correct such non-compliance right away … So add right away to the list of alternative ways of saying promptly. MSCD 13.536 already offers expeditiously, as soon as practicable, and forthwith. … Read More
In this post I promised that I would write about voluntarily. Rejoice, friends—that time has come. As a bonus, I give you also freely. The problem with both words is that the whole idea of a contract is that you enter into it because you want to and you agree to everything that it contains, so voluntarily and freely go without … Read More
Yesterday Tim Cummins of the International Association for Contract & Commercial Management posted this item on his blog. It’s on the need for change in contracts, a subject Tim writes about regularly. Tim is used to my nagging, so I permit myself the following thoughts. Tim’s post was prompted by a recent IACCM webinar on the new ASC606 revenue recognition standard. … Read More
It’s clear what’s required to improve the contract-creation side of a company’s contract process: adopt a style guide for contract language, most likely by means of a “statement of style” (here) train your personnel in drafting and reviewing contracts consistent with the style guide overhaul your templates consistent with the style guide automate your templates, to the extent that deal … Read More
Yesterday I unleashed on an unsuspecting world the following devastating insight: Instead of "shall without undue delay," I'd use "shall promptly". — Ken Adams (@AdamsDrafting) April 6, 2015 That’s straightforward enough—if you can express something positively instead of negatively and save a couple of words in the process, then you should do so. I had planned to leave it at … Read More
I noted with interest this post by Ken Grady on Seyfarth Shaw’s Seytlines blog, particularly as last year I did a Q&A with Ken on this blog (here). Ken’s post is about quality in contracting. He starts by discussing the limitations of determining quality by proxy. As he says, “Trusting the brand, versus trusting metrics that measure desired characteristics, is … Read More
It’s time for another installment of your favorite game, Which category of contract language? Here’s a cleaned-up version of something I just saw in a contract: The Consultant may rely on the accuracy and completeness of all information provided by the Client. I suggest that language of discretion doesn’t make sense. Without this provision, would the Client have a remedy if … Read More
Yesterday ContractsProf Blog published this guest post by Tina Stark. It serves as a reminder that drafters should distinguish sale of a company from a shareholder’s selling shares. It also serves as a reminder that there are different ways to sell a company. Here’s the gist of it, from Tina’s post: In Buckingham v. Buckingham, 14335 314297/11, NYLJ at *1 (App. Div., 1st, Decided … Read More
[This post was originally published May 4, 2013. I’m republishing it because a client, of all people, mentioned it to me—I had completely forgotten about it. On revisiting the original post, I decided that it was worth upgrading my new language from thought piece to something I use in my contracts. So I revisited Vinny Martorana’s analysis from two years … Read More
When you encounter confusion in contract language, the thing not to do is to stamp your feet and insist that your interpretation is the sensible one. The confusion I have in mind is whether a deadline of, say, 5:00 p.m. passes once you’ve entered the first second of the five o’clock hour or whether it ends after the last second of … Read More
