Every so often an issue arises in a topic that I haven’t had occasion to think about in a while. Here’s an instance of that. Check out the following, caught fresh in the EDGAR lagoon (italics added): Buyer is hereby purchasing from the Sellers, and the Sellers are hereby selling to Buyer, free and clear of all Encumbrances, all of the … Read More
Usually, where one or more parties happen to be on signing a contract should have no bearing on that contract. It might be relevant for purposes of determining the governing law, but only if you fail to include a governing-law provision. So a general matter, nothing is accomplished by stating—whether in the introductory clause, in the signature blocks, or elsewhere—where one or more signatories happen to … Read More
In MSCD and in this 2011 post I discuss using want in recitals instead of wish or desire. But how about intend? I hereby propose a distinction in how to use intend in recitals. First, don’t use intend for matters addressed in the contract. For that, stick with want or, if you prefer, desire or wish: intend isn’t a good fit. You … Read More
Thanks to this item on Lexology by Kimarie Cheang of Holman Fenwick Willan, I learned that earlier this year, in the case of KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] SGCA 16 (here), the Singapore Court of Appeal had considered the implications of an obligation to use “all reasonable endeavours.” The court surveyed relevant caselaw in Singapore, England, and … Read More
There’s style, and there’s substance, no? Well, not quite. Some drafting decisions don’t affect meaning. That includes all decisions relating to the look of a document. It also includes some decisions regarding wording. Witless archaisms such as witnesseth don’t affect meaning. And consider Acme may purchase the Shares and Acme is authorized to purchase the Shares. I recommend using the version … Read More
The construction industry was an early adopter of commoditized contract creation. In this 2006 post I mentioned the AIA Contract Documents, promulgated by the American Institute of Architects. It’s one of the best-known trade-group-sponsored document initiatives. Because the AIA Contract Documents are perceived to be developer- and architect-friendly, it gave rise to a competitor, ConsensusDocs. This post is on Contract-Automation … Read More
I suspect that I don’t read contracts like other folks. When I’m in let’s-analyze-contract-usages mode, I trawl through contracts looking at how drafters express a given meaning. When I’m working on templates, I mine the client’s current templates looking for what to adjust and what to replace. That’s different from reading a draft prepared by someone on your side of the transaction, … Read More
The act of creation is associated with the act of naming. That which is nameless doesn’t fully exist. I haven’t given a name to my approach to contract language, other than to refer to the result by, for example, brandishing the phrase “Drafting Clearer Contracts.” Similarly, I haven’t given a name to the current regime. Instead, I’ve limited myself to identifying its … Read More
[Updated October 14, 2014: Go here for a PDF copy. Incidentally, I haven’t yet received any feedback about this article, but I’m not surprised. I wouldn’t have expected to hear from anyone who endorses the approach reflected in English caselaw, as I think I’ve comprehensively debunked it.] The 30 September 2014 issue of the English periodical Solicitors Journal contains my article … Read More
The biggest conceptual obstacle to clearer contract language is the notion of “tested” contract language—the idea that if a court offers its interpretation of confusing contract language, we’re forevermore committed to using that confusing contract language to convey that meaning. But recently I’ve heard people discussing a related concept—whether a provision is “market”. A provision is “market” if it’s so … Read More
