Recently I encountered cognizant in a contract. It’s a foppish word meaning “knowledgeable of something, especially through personal experience.” It’s not that common in contracts, but it’s not an utter rarity either—it’s in a few dozen contracts filed on EDGAR in the past year. Below is an example of cognizant used in a contract to convey the established meaning; I’d use … Read More
[Updated 15 May 2022 to aadd “in the first sentence of ” to section 12.4(a).] [Updated January 18, 2014, to add to 12.4(b) “or other change in general economic conditions”.] [Updated yet again August 24, 2013, to reflect further comments emailed me by A. Wright Burke.] [Updated August 20, 2013, to reflect changes prompted by A. Wright Burke’s comment.] [Updated … Read More
Via @bradleybclark and this post on Legal Informatics Blog, I learned of a paper entitled “Software Tools for the Visualization of Definition Networks in Legal Contracts.” It’s by Michael Curtotti and Eric McCreath, both of Australian National University, and Srinivas Sridharan of the University of California, San Diego. Here’s the abstract: This paper describes the development of prototype software-based tools for visualizing definitions within legal … Read More
Recently, 3 Geeks and a Law Blog invited readers to suggest basic processes that law firms are really bad at. The responses they received are on display in this post, and two caught my eye: Maintaining Practice Group Forms One of the things that firms still struggle with is managing forms. It was something that has been discussed for years … Read More
For the first time since 2005, I won’t be teaching in the fall, as a member of the adjunct faculty, a law-school course in contract drafting. In one respect, that’s a relief, as I’ll be able to continue my globetrotting unhindered. Abu Dhabi, here we come! But at some point I’d like to resume teaching. Not because I’m the second … Read More
A latecomer to the MSCD family of ambiguity is antecedent ambiguity—uncertainty over what the antecedent is of a given element. But it’s certainly making up for lost time. Today, thanks to that relentless source of leads known as Steven H. Sholk, I’m able to offer you an instance of antecedent ambiguity from the hot-off-the-presses opinion of the Delaware Court of … Read More
No one has commented publicly on my post about suboptimal drafting in the contract for Jeff Bezos’s acquisition of the Washington Post (here). That comes as no surprise: I’ve learned that M&A practitioners are reluctant to stick their neck out. But I did receive one comment privately: Digital delivery of movies to theaters is way more efficient and cost effective … Read More
A little birdy suggested that I should check out the definition of “Arbitrator” in section 12(a) of the agreement providing for Jeff Bezos’s acquisition of the Washington Post. (For more about that contract, see this post.) Here’s the sentence in question: If the Purchase Agreement is not executed within 60 days of the date hereof, the Seller and the Purchaser … Read More
[Updated most recently 18 October 2021. For details, go to the end of this post.] Over the years I’ve posted plenty of items about indemnification. (If you click on the “Indemnification” category to the right, you’ll be offered sixteen different posts.) But I’ve not posted any indemnification language … until now! Yes, I know, I feel very emotional about it … Read More
Dear Mr. Bezos: I noted with interest the contract providing for your acquisition of the Washington Post. (Go here for a PDF copy.) Whereas others have considered the substantive implications, I limited myself, as usual, to the drafting. I skimmed the contract and wasn’t surprised to conclude that it leaves something to be desired. Why am I telling you this? Because … Read More
