[Updated 20 Nov. 2023: For a discussion of using no-reliance language in commercial contracts, see this 2016 blog post.] [Updated 23 May 2011: Revised again to clarify the analysis. Sometimes it takes a while to get stuff right!] In Italian Cowboy Partners, Ltd. v. Prudential Ins. Co., WL 1445950 (Tex. April 15, 2011) (PDF copy here), the Texas Supreme Court … Read More
Thanks to @TraciRiccitello, I learned of this Kelley Drye analysis of a recent Maryland Court of Appeals case, Weichert v. Faust. This dispute serves as a reminder of the potential ambiguity of -here and -there words, in this case hereunder. This case involved a dispute between a real-estate agency, Weichert, and its former vice president, Faust. The jury found that … Read More
Last week someone emailed me to ask me when I’d next be giving seminars in Europe. Of course, I responded by immediately planning some. So on July 12, 13, and 15, I’ll be giving in Geneva, Switzerland, my “Drafting Clearer Contracts” seminar. And on July 14, I’ll be giving a seminar entitled “The Structure of U.S. Mergers-and-Acquisitions Contracts.” For more … Read More
One of the participants at my recent Chicago seminar discussed with me what he described as the “optics” of contract drafting. What he was referring to was the value of not waving a red flag at the other side. He provided the following example of alternative section headings: Limitation of Customer Remedies. Customer Remedies. Aaron preferred the second heading—why have … Read More
Here’s an amusingly pointless usage: including o’clock when you state a time of day in a contract, as in before 4:00 o’clock p.m. on the Borrowing Date. Adding o’clock accomplishes nothing. It occurs in 109 “material contracts” filed on the SEC’s EDGAR system in the past year—not often enough to say that it’s a standard usage, but often enough to … Read More
More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons: First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction. And second, it violates a cardinal rule of drafting—Thou shalt … Read More
That one-man legal-research machine Steven Sholk informed me of the California Court of Appeal’s decision in Vespremi v. Tesla Motors, Inc. (go here for a PDF copy). The part that caught Steven’s eye was the court’s discussion of the following provision in the employment agreement of one of the plaintiffs (the employment agreement of the other plaintiff contained the same … Read More
In this April 2010 post on AdamsDrafting I explained why I thought the notion of an crowdsourced initiative to create contract templates wouldn’t be viable. But seeing as this idea has recently been discussed in this post on Bill Carlton’s Counselor@Law blog and in the comments to this post on Brian Rogers’s theContractsGuy blog, I thought there might be some … Read More
Last month I suggested in this post that trade groups might benefit from partnering with Koncision to produce document-assembly versions of their template contracts. In the same vein, here’s how a partnership with Koncision would benefit any law firm looking to develop document-assembly templates: The development process would take about a quarter of the time that it would otherwise. Koncision … Read More
[Updated 11:30 a.m. EDT, May 6: Getting rid of “definitive transaction” in the language I offered in the previous post caused me to get carried away, and Chris’s comment below has caused me to reverse course. A letter of intent that contains binding confidentiality provisions but is otherwise not binding could conceivably be described as “providing for” a transaction. I … Read More
