MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information … In this context, the active voice is wordy. It’s obvious that a proceeding would have to be brought by someone. Because it doesn’t matter who brings a … Read More
One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information … I’m wondering whether one could improve on that formulation—given that or can be inclusive or exclusive, it’s not … Read More
To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending the commenter a friendly reply. … Read More
Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I’ve come across in a long time, agrees with me on represents and warrants and representations and warranties. Below is the email Glenn sent me in connection … Read More
If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in the U.S.) and … Read More
It’s clear from reader feedback that I need to do a better job of explaining myself. Here goes: It’s pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties because … Because my informal inquiries indicate that most lawyers treat the elements of those phrases as synonyms, much as they do the two elements … Read More
On the website of the state bar of Wisconsin I came across an article entitled “Backdating Documents: Not Necessarily the Stuff of Scandal.” It contains the following passage: Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of backdating. This is backdating … Read More
While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary to what appears to be … Read More
In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. That got me to wondering whether any such contract specialist would have to be a lawyer. In other words, if a nonlawyer works on a contract, does that constitute the authorized practice of law? I’m not about … Read More
[Updated Sept. 20 12:30 p.m. EDT: I realized that I needed to provide a more succinct version of my analysis. If that’s what you’re looking for, check out this blog item, which I just posted.] I’ve previously explained why the phrases representations and warranties and represents and warrants are pointless and confusing. And that applies whatever the governing law. My … Read More
