I had a look on EDGAR for contracts that specify that a given choice is to be made by a coin toss (or “flip”). For the most part, those that provide for such a mechanism don’t get specific. Here’s an example: After a coin toss to determine who makes the first strike, the parties shall strike names from the list alternately until the … Read More
Here’s what MSCD 13.761–62 has to say about willful and willfully: As it’s usually used in contracts, the word willful, as in willful misconduct, is not only vague but also ambiguous. It means intentional,” but drafters usually don’t make it clear whether the focus is on the party’s action or on the consequences of the party’s action—it’s possible to act intentionally without intending to … Read More
I apologize for these repeated non-thrilling updates, but word is filtering in that although MSCD is available in, for example, the UK iTunes store, it isn’t available in other non-U.S. stores: Russia! New Zealand! Very annoying. The publisher is trying to figure out what the problem is.
I’ve decided that use of represents and warrants is the litmus test in the battle for clear contract language. That’s why I’m always game to chime in on the subject. I had an opportunity to do so today, by posting this comment to an article by Drew Hasselback on the website of the Financial Post, a section of the Canadian publication … Read More
Today I happened to consult the Black’s Law Dictionary definition of ipso facto. Here it is: ipso facto (ip-soh fak-toh). [Latin “by the fact itself”] (16c) By the very nature of the situation <if 25% of all contractual litigation is caused by faulty drafting, then, ipso facto, the profession needs to improve its drafting skills>. I was tickled by the example provided. Seems logical to … Read More
You remember my post asking for readers to suggest terms of art that can’t be replaced with something clearer (here)? I offer with prejudice. Here’s how Black’s Law Dictionary defines the phrase: with prejudice, adv. With loss of all rights; in a way that finally disposes of a party’s claim and bars any future action on that claim <dismissed with prejudice>. See dismissal with prejudice under DISMISSAL (1). It’s routine … Read More
The other day I issued a tweet that contained a link to a PDF copy of one of my articles. That prompted the following reply from someone I didn’t know: “A pdf? Too hard to read on my phone. Pass.” I replied in a way that suggested that I though the sender one of the contingent who regard it as … Read More
Those who don’t do M&A may leave the room. In MSCD and in my ebook The Structure of M&A Contracts, I explain that double materiality is a figment of practitioner imagination, one that has left no trace in the caselaw. But at one of my “Structure of M&A Contracts” seminars the other day, I realized that I have to do … Read More
In this post on his Law21 blog, Jordan Furlong offered his thoughts on, among other topics, how bar associations could play a greater role in developing form documents. I recommend you read it. I posted a comment; to spare some of you the labor of clicking and scrolling, here’s the part of my comment that’s most relevant to Jordan’s suggestion: … Read More
I sometimes get from unexpected quarters ideas for new bits of contract language for to me ponder. Last week, my web designer, the inestimable Selene Bowlby of iDesign Studios, asked me about the phrase “this agreement contemplates,” which she had seen in a contract for web-design services. An astronomer contemplates the universe. An existentialist contemplates being and nothingness. I contemplate … Read More
