Judges and commentators have long fulminated against and/or. One particularly irate judge—perhaps spittle-flecked, with neck veins bulging—referred to it as “that befuddling, nameless thing, that Janus-faced monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean.” And here’s David … Read More
[Updated July 14, 2015: This topic is revisited in this 2012 post and this 2015 post.] The recent Lawyers Weekly article that I linked to in a previous post contains the following: The phrase “sole and exclusive license,” for example, is common yet contradictory. “Sole,” on the one hand, means only one person has the legal right to use the product. … Read More
An M&A-lawyer boogeyman is “double materiality,” which ostensibly arises when a materiality qualification is included in the bringdown condition to one party’s obligation to close, as well as in one or more representations made by the other party. The concern is that double materiality could mean that even though a seller representation qualified by materiality is inaccurate, it’s not inaccurate … Read More
This article by Donalee Moulton in the current issue of the Canadian periodical The Lawyers Weekly considers what’s involved in making contracts clearer. Yours truly makes a brief appearance. If you’re interested, by clicking here you can get on SSRN a copy of the Gelpern and Gulati article mentioned in the Lawyers Weekly piece.
In this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of retaining drafts of a contract.) Well, last week brought further news in this saga, as a federal jury found that two key Unix copyrights belonged to Novell and not to SCO. (Click here for the WSJ Law Blog’s account.) … Read More
[Updated April 6, 2010: Another resource is this recent Law Technology News article on document assembly. Not that it says anything earthshattering.] The comments to last Tuesday’s post about Kingsley Martin’s new blog veered unexpectedly into a detailed discussion of document-assembly technologies. That got me to thinking that it might not be a bad idea for me to provide links to … Read More
Regular readers of this blog will know that I’m committed to drafting contracts in standard English—English as spoken and written by the average educated native English speaker. But sometimes, nothing can take the place of that olde-worlde lingo. An important example of that is forsooth, meaning “in truth,” “indeed.” It’s all well and good to think in terms of articulating … Read More
Once you’re attuned to my framework of “categories of contract language,” as laid out in chapter 2 of MSCD, you’ll see its implications at every turn. A big part of my recent article on the AAA standard arbitration clause (pdf here) was a discussion of categories of contract language. The boilerplate governing how contracts are amended raises a similar issue. … Read More
In March 2009 I did this Q&A with Kingsley Martin, developer of KIIAC, a software for creating templates and clause libraries for use in drafting contracts. I continue to think that KIIAC is invaluable for anyone looking to create a new template from a large group of comparable precedent contracts, so it was with interest that I noted that Kingsley has … Read More
I’ll be in Calgary the week of April 26, in part for my “Drafting Clearer Contracts” public seminar for Osgoode Professional Development. (Click here for more information about that.) But what’s currently on my mind is that I’m free on Wednesday, April 28, until mid-afternoon. Hmm, time for a 3-hour or 4.5-hour seminar, methinks. If you’d like to find out … Read More
