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
[Updated July 19, 2013] In this recent post I grandly announced that the ebook version of A Manual of Style for Contract Drafting was available on iTunes, but it later transpired that pretty much everything I had to say on the subject was wrong. I don’t hold that against myself or anyone else—when it comes to law books, this ebook … Read More
Here are three instances, from EDGAR, of use of the phrase to the best of its [or his, her, or their] ability: The Company hereby engages the Consultant, and the Consultant hereby agrees to serve the Company to the best of his ability to provide financial advisory services to the Company during the Term (as defined below) as and when … Read More
Today I was reminded of the phrase every effort. I mention it in this 2004 article, but not in MSCD. Here’s an example from EDGAR: The Investment Manager represents that it shall make every effort to ensure that the Fund continuously qualifies as a Regulated Investment Company under Subchapter M of the Code or any successor provision. This phrase serves as a reminder of … Read More
