A recent opinion of the Court of Appeals of New Mexico, Sabatini v. Roybal (PDF copy here), caught my attention. It reminded me how tricky it can be to distinguish between the sources of uncertainty in contract language. The phrase at issue was “private garage.” The district court had held that for purposes of a restrictive covenant, “private garage” meant only … Read More
From this blog post by Brian Rogers, aka The Contracts Guy, I learned of a recent Seventh Circuit case that considered the meaning of a contract provision that required the parties to use “best efforts” to reach agreement. Distinguishing this provision from other efforts provisions, the court concluded that all that this provision required was that the parties bargain in good faith. … Read More
Thanks to this post by Venkat Balasubramani on Eric Goldman’s Technology & Marketing Law Blog, I learned about the Ninth Circuit’s recent opinion in Simonoff v. Expedia. The bit of interest to me related to the following forum-selection provision: You hereby consent to the exclusive jurisdiction and venue of courts in Kings County, Washington … in all disputes arising out … Read More
Of late, I’ve been pondering the following notion: “Everyone thinks his own fart smells sweet.” It’s one of the “Adages” of Erasmus, the Renaissance scholar. And I think it explains much of the resistance to clearer contract language. Let’s take as my starting point the notion that the overwhelming majority of business contracts are constructed of language that varies from … Read More
I suspect that included among the following are the one or more reasons why you haven’t contacted me to discuss whether I might help you revise your templates: Our contracts are fine. I should know, as I’m a good drafter. The funny thing about writing, as opposed to, say, tightrope walking, is that if you’re left to your own devices, … Read More
If you’re not attuned to the nuances of categories of contract language, you may well overlook the distinction between conditions and obligations. That can lead to real unhappiness, given that the consequences of failing to satisfy a condition are very different from the consequences of breaching an obligation. In that regard, here’s a provision that I spotted on the SEC’s … Read More
What do disclaim and disclaimer mean for purposes of contracts? Here’s the Black’s Law Dictionary definition of disclaimer: disclaimer, n. (15c) 1. A renunciation of one’s legal right or claim; esp., a renunciation of a patent claim, usu. to save the remainder of the application from being rejected. 2. A repudiation of another’s legal right or claim. 3. A writing … Read More
Today a reader sent me the following question: Is there a reason why original contracts should be single-sided? Our Legal Department requires this. I’ve never considered this issue. As time goes by, more people are signing contracts electronically, or just trading signature pages, but presumably paper copies of signed contracts currently still have a big role to play. I welcome … Read More
[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
