May can mean might, but I don’t think that’s any reason for me to stop recommending that you use may as the workhorse for language of discretion. Here’s what MSCD 3.160–62 says about may meaning might: In addition to conveying discretion, may can also be used to express that something might come to pass. The result is ambiguity. Consider the … Read More
Updated August 9, 2014: Comments by Harley Meyer have prompted me to update this post. Harley makes a couple of points. He focuses on the notion that courts will allow for cure, regardless of what the contract says. I haven’t yet researched this extensively, but I’ve found enough to suggest that drafters shouldn’t assume that that’s the case. For example, Robert … Read More
Consider the verb tend. It means “regularly or frequently behave in a particular way or have a certain characteristic; be liable to possess or display (a particular characteristic).” Well, don’t use tend in contract drafting. In contracts, something is relevant if it happens, if it might happen, if it’s likely to happen, or if it doesn’t happen. You could also say … Read More
Recently I had a chat with the general counsel of a technology company. We discussed whether it would make sense for the company to overhaul its templates and automate them. I mentioned my showcase document-assembly template (here), and the GC said, with a note of consternation, that the template asked lots of questions. Since others doubtless have that reaction, I’ll … Read More
With the summer lull about to end, I’m planning my fall travels. I’ve listed below the trips I currently have planned. If a given trip is for a public seminar, I’ve provided a link. When I’m not on the road, I’ll be in the New York area. If you’d like to arrange an in-house presentation, discuss your organization’s templates or contract … Read More
It’s commonplace for contracts to provide that a party may terminate for “material breach” by the other party. I’m not keen on that standard: as longtime readers will know, material is not only vague, it’s also ambiguous—drafters use material to mean either “of dealbreaker-level importance” or just “significant” (in other words, “nontrivial”). (If I’m using defined terms, I’d use the defined term Significant … Read More
There’s this: On signing this agreement, the Sponsor is paying Acme $500,000 by check toward the cost of developing the Program. I do believe that what we have here is that most rare creature, a candidate to join the categories of contract language. I’m inclined to call it “language of concurrence.” But the bigger question is whether it serves a useful … Read More
Do I really have to say it? OK, here goes: inure (meaning “to take effect; to come into use”) is lame. You might know inure from “successors and assigns” provisions: This agreement is binding upon, and inures the benefit of, the parties and their respective permitted successors and assigns. But since we’ve happily consigned the “successors and assigns” provision to oblivion (see … Read More
Because he happened to cite one of my posts on the subject, I came across this post on liquidated damages by Virginia litigator Lee Berlik. It discusses a recent Virginia case regarding a contract provision that allowed a party to choose between liquidated damages or some other, greater remedy. Here’s the language at issue: If the Seller does not elect to accept … Read More
For data nerds, recent years have seen relentless progress. More! Better! Cheaper! But that’s not the case for one subgroup—contract nerds. Many moons ago (2006), I wrote here about word-searching exhibit 10 filings on the U.S. Securities and Exchange Commission’s EDGAR system. The SEC requires that companies file their “material contracts” on EDGAR using the “exhibit 10” designation. So exhibit 10 filings represent … Read More
