You might recall that one of the rationales for use of the phrase represents and warrants is that it allows you to specify what remedies are available, namely an action under the contract for breach of warranty, a tort action for misrepresentation, or both. In an as-yet-unpublished article, I demonstrate that using represents or warrants or both doesn’t make sense. I go on to … Read More
Recently I was on the panel for a live webcast—you know, with panelists joining in by telephone and everyone looking at PowerPoint slides on their screens. I didn’t exactly cover myself with glory. Partway through, the battery on my cordless phone expired—thankfully not while I was speaking. I thought it would be safest to call back in on an ancient … Read More
At my recent “Drafting Clearer Contracts” seminar in San Francisco, a participant asked me what I thought of use of the phrase knowingly, voluntarily, and intentionally in waivers of jury trial, as in the following EDGAR example (I converted it from all caps to spare you having your eyeballs explode): The borrowers hereby knowingly, voluntarily, intentionally and irrevocably waive all … Read More
If you think of yourself as a committed member of the digerati, The Glass Cage: Automation and Us, by Nicholas Carr, might give you pause. Carr shows that as much as automation enriches our lives, it can also impoverish. For example, he describes how all-encompassing flight automation appears to have resulted in a “deskilling” of pilots, leading to a new type of aviation … Read More
Here’s the opening of this Gigaom story, by Stacey Higginbotham: One of the biggest roadblock to adopting the public cloud for Rich Roseman, former CIO at 21st Century Fox had nothing to do with bandwidth, vendor-lock in or security. It had to do with lawyers. Specifically, old lawyers who couldn’t adapt their contracts to the new world of the cloud. … Read More
Welcome to shall seek, yet another unhelpful alternative to saying that a party has to use reasonable efforts to accomplish something. With shall seek, you’re saying that someone has to try to do whatever it is, but you don’t provide a standard. In each of the following examples from EDGAR, I’d use instead reasonable efforts: When placing such orders, the … Read More
For the sheer heck of it, let’s look at how the verb promises is used in contracts. Here are two examples from EDGAR of promises that: Executive agrees and expressly promises that, during the Prohibited Period, Executive shall not directly or indirectly (i) recruit, solicit or induce any employee, consultant, or independent contractor of the Parent Company or any of its Subsidiaries … Read More
The contract process divides neatly into two parts: stuff that happens before a contract is signed, and stuff that happens after. I never get involved with what happens after signing, unless it has to do with amending a contract. But I try to keep informed, which is why I’ve sniffed around contract-lifecycle-management (CLM) software. See for example this 2007 post. The big … Read More
Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here). Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with … Read More
I’d like to revisit something discussed in MSCD—how one states warranties relating to, for example, goods yet to be delivered. Consider the following: Acme warrants that the Units will be free from defects when shipped from Acme’s plant. That’s standard warranty language, with Acme stating “future facts,” to use warranties-doctrine lingo. Well, in terms of semantics, I’m not keen on the notion … Read More
