How come one drafts a contact but writes a letter? The verb draft has a number of possible meanings, but here’s what the Oxford English Dictionary—the bound version, not the online version—gives as the one definition relating to preparing documents: “To make a draft or rough copy of (a document); to draw up in preliminary form, which may be afterwards perfected.” … Read More
Having parties to a contract date their signatures makes sense when there’s a lag time between when the first party signs and the last party signs. And some auditors are requiring that their clients use dated signatures in all their contracts. But dating signatures can be a nuisance. As I noted in this November 2008 blog post, one problem is … Read More
The interviews I’ve done on this blog have been about technologies relevant to the contract process or have explored some narrow topic that I’m particularly interested in. What’s been missing is interviews in which people who work with contracts discuss issues relevant to them. Here’s the first such interview; I’ll be doing others every so often, all under the rubric … Read More
Black-and-white is simpler than shades of gray—the most straightforward MSCD recommendations are those urging you to scrap entirely a given word or phrase. Here’s a partial list of words and phrases that ideally would be absent from your contracts: at no time best efforts covenant for the avoidance of doubt hereinafter referred to as including but not limited to including … Read More
Legal OnRamp, the online forum for in-house counsel and invited outside lawyers and vendors, has announced the “FMC Technologies 1° Law Litigation Value Challenge.” It’s a beauty contest for law firms interested in doing FMC’s litigation work. I suppose what distinguishes it from the run-of-the-mill beauty contest is that Legal OnRamp represents a particulary public platform. And for all I … Read More
On Thursday, May 28, I’m giving my all-day “Contract Drafting—Language and Layout” seminar in Vancouver, BC, under the auspices of Osgoode Professional Development. Click here for more information. I did my first public seminars with Osgoode Professional Development, and my Toronto seminars with them have been, in all respects, a resounding success. So I’m eager to have the Vancouver seminar … Read More
In MSCD 12.285–315 I explain why it’s pointless and confusing to say represents and warrants, not to mention representations and warranties. No one has made a serious attempt to refute my argument. But recently I received an interesting report from the front lines. Knowing that I have a thing about represents and warrants, Trevor Grant of the Canadian law firm … Read More
[You might also want to read this September 2009 post in which I refine my thinking on “arising out of” and “relating to”.] A Canadian law firm recently shared with me its draft “boilerplate” template. On reading it, I saw that the law firm recommends that its lawyers use the following language in any governing-law provisions (I’ve omitted the bit excluding … Read More
[Updated April 17, 2013: For my more recent take on this, see this July 2012 post.] In MSCD 12.134 and in these blog posts, I recommend that you rid your contracts of the phrase indemnify and hold harmless. Most lawyers unthinkingly use indemnify and hold harmless as synonyms. And I’ve found that lawyers who instead think those concepts can be … Read More
It’s commonplace for performance to begin before a contract has been signed, with the contract being signed once all necessary approvals have been secured. MSCD 1.32 recommends that in such contexts, you put in the introductory clause the date the contract is signed, rather than the date performance began. (That assumes you’re using a date in the introductory clause rather … Read More
