Via this post by Ray Ward I learned of the recent opinion of the Second Circuit Court of Appeals in AIG v. Bank of America (PDF copy here). In the opinion, the court states that whether a modifying phrase following a list of nouns or phrases modifies each item on the entire list, or only the last item, depends on whether … Read More
The other day @bradykrissesq posed the following question on Twitter: What is the legal significance of a contract requirement to “do all things”? — Brady Kriss (@bradykrissesq) April 30, 2013 Although it’s not the most crucial drafting issue, Brady, this one’s for you … Here are three instances of use of thing or things in contracts on EDGAR: … each … Read More
Brian Rogers, also known as @theContractsGuy, has reviewed the third edition of A Manual of Style for Contract Drafting. Go here to read it. I’m delighted that Brian thought it worthwhile to go through the old-fashioned work involved in writing a book review. No reviewer want to write a puff piece, and Brian is no exception. Although his review is … Read More
An article in Corporate Counsel by a BigLaw partner and associate (copy here) considers governing-law provisions. It suggests that using the following provision would increase the odds of a court’s holding that the provision applies to claims other than claims under the contract: This contract shall be governed and construed in accordance with the laws of [selected State], excluding that … Read More
Oh, hi! It’s you! Do come in. Please take a seat. Would you like some tea? Water? No? OK. Thank you for coming. I’d like to have a chat. It’s about your template contracts. It’s hard to say this gently: they’re not good. Your company is a substantial one. You do business all over the world. Your numbers have lots of … Read More
This morning I encountered the following sentence on EDGAR: Therefore, the obligations of the Sellers under this Agreement, including, without limitation, the Sellers’ obligation to sell the Shares to the Purchaser, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. It’s nothing … Read More
Seminar customers will sometimes ask me, in effect, to focus on the important stuff. I respond that it wouldn’t make sense to have me do that. Take, for example, my “categories of contract language” analysis. Sure, some of the distinctions are more important than others. A prime example is the distinction between obligations and conditions. But that distinction would be … Read More
You’re an in-house lawyer who consults A Manual of Style for Contract Drafting. In fact, it’s widely used in your department—your company does its best to produce contracts that are clear, modern, and effective. But for your outside counsel, it’s business as usual—when you ask them to prepare a contract, they give you traditional contract language. Well, if you have any … Read More
The earnest cliché ready, willing, and able occurred in 102 contracts filed on the SEC’s EDGAR system in the past year. That’s not a whole lot, but it’s not nothing either. Here are some examples: Borrower and Bank recognize and agree that the Origination Fee … is a material inducement for Bank to make the Loan and for having Bank ready, willing … Read More
Last month the Minnesota Supreme Court issued its opinion in In re Petition of S.G., 828 N.W.2d 118 (Minn. 2013) (PDF copy here). This opinion doesn’t involve a contract dispute. Instead, what caught my eye is what is, to my mind, a misunderstanding on the part of the judge writing the concurring opinion. Why bother pointing it out? Because it’s … Read More
