If you’re the sort who routinely rummages in the entrails of commercial contracts, you might well find of interest D.C. Toedt’s website On Technology Contracts. D.C. Toedt (pronounced “Tate”) is a business lawyer with an intellectual-property and software-law background. He’s in private practice in Houston; I owe him a debt of gratitude for having introduced me to Ninfa’s on Navigation … … Read More
Yesterday I gave another of my Osgoode Professional Development seminars in Toronto, to a sellout crowd of eighty. During a break I discussed with one of the participants what to call the components of the body of the contract. In a follow-up email, here’s what she had to say on the subject: As discussed, in England the practise as I … Read More
“Definedtermitis” is a condition caused by excessive reliance on defined terms. It causes clogging of the arteries of your contracts. Those who succumb to it are referred to as “definedtermites.” Consider an email I received today from a reader: OK, so I thought it was a typo, but it turns out it was intentional. I was reviewing a clause in … Read More
It’s not only transactional types who are interested in contract language. If you want to see how a different online ecosystem approaches the subject, I suggest you have a look at this post on Language Log and the related comments. I like to think that I stand somewhere between the linguists and the lawyers. It’s good to have both perspectives. … Read More
Rarely do I have occasion to offer thoughts on drafting under article 2 of the Uniform Commercial Code, which applies to sales of goods. Here are two warranty disclaimers from some equipment purchase agreements I’ve been reviewing: NO OTHER WARRANTY TO CUSTOMER FROM SELLER IS EXPRESS OR IMPLIED. SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A … Read More
Today I had occasion to consider use of the phrase in particular in contracts. Here are some examples, taken from the SEC’s EDGAR system: The Company has taken all reasonable steps to maintain the confidentiality of or otherwise protect and enforce its rights in its confidential information, in particular the trade secrets owned by the Company. Each FREGAT Owner represents … Read More
I’m looking for caselaw or commentary on the following issue relating to the parts of a mergers-and-acquisitions contract. If a buyer wants to address in an M&A contract circumstances that are under the seller’s control—for example, whether the seller is in good standing under Delaware law—it would make sense to do so by means of a representation. If that representation … Read More
Today I saw the following in a contract I pulled from the SEC’s EDGAR system: SunPower hereby guarantees that, subject to Section 22, it shall supply and deliver each of the Products to the delivery point specified in a given Purchase Order (each, a Delivery Point ) on or prior to the scheduled delivery date therefor specified in such Purchase … Read More
Currently on my nighttable is Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, by Steven Davidoff. Steven is a professor at the University of Connecticut Law School (click here for his faculty bio page) and is the New York Times’s “Deal Professor.” Before teaching, he practiced for ten years with Shearman & Sterling in its … Read More
December is when the American Bar Association tells its authors how their books did during the year that ended the previous September 30. So a couple of weeks ago I heard how the second edition of MSCD fared during the year starting just four months after its publication in July 2008. Publishers and authors are notoriously cagey about sales information, … Read More
