In connection with one of my Calgary seminars, someone suggest that my treatment of best efforts doesn’t apply in Canada. I thought I should address that, because if my analysis doesn’t work for Canada, it doesn’t work anywhere. Chapter 7 of MSCD contains my analysis of efforts provisions, and I’ve also done a good number of blog posts on the … Read More
A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you’re likely going to be early or late, to a lesser or greater extent. That’s because any given time of day isn’t a period of time, but simply the … Read More
Drafters use the phrase time is of the essence to indicate that failure to meet a contract deadline constitutes grounds for termination. But as I explain in MSCD 12.394–403 and in this May 2006 blog post, saying Time is of the essence for purposes of this agreement is problematic, in that such provisions suggest that the draconian termination-for-any-tardiness standard applies … Read More
I’m at the tail end of a productive week spent in Calgary. Last Thursday I gave a seminar for Petro-Canada and its outside counsel, Fraser Milner Casgrain. On Friday I gave a lunchtime presentation for the Canadian Bar Association Alberta. And today, I gave a seminar for the law department of Enbridge Pipelines. Based on preliminary feedback, those who attended … Read More
A recent Texas case, XTO Energy, Inc. v. Smith Production, Inc., 2009 WL 442003, No. 14-07-00069-CV (Tex. App. Hous., Feb. 24, 2009), shows why it’s a good idea to be excruciatingly comprehensive when specifying in a contract the procedures to be followed when the parties make important decisions. Appellee Smith was an operator under two joint operating agreements (JOAs) governing … Read More
The current issue of the Canadian periodical The Lawyers Weekly contains an article entitled “Plain Language Movement Gaining Steam.” It’s a useful introduction, although regular readers of this blog won’t be surprised by what it has to say. And it quotes some contract-drafting guy … Incidentally, I explained in this November 2006 post why I refer to “standard English” rather … Read More
Recently I’ve enjoyed reading some thoughtful posts offering different takes on the working life in law—how to make it more meaningful, or at least how to survive. In particular, I’m thinking of Vickie Pynchon’s posts tracking how she picked herself up and dusted herself off after being laid off in 1992; click here for the first in the series. And … Read More
In MSCD 3.57, I use the term “frontloading” for the process of pulling select information out of the body of the contract and placing it at the top of the contract. In MSCD 3.63 I acknowledge that instead of frontloading information, you could put it in a schedule. Some contracts—including one I’m reviewing at the moment—are aggressive about that, in … Read More
The New York Law Journal has published, in its “GC New York” section, my article entitled “Retooling Your Contract Process for the Downturn.” Click here to go to a nifty PDF reprint and click here to go to the online version (free registration required). I suspect you’ll find that a hard copy of the reprint is easier to read than … Read More
I’ve learned that Twitter can serve as an early-warning system. Thanks to a Twitter update by Lance Goddard—he of the blog Are You Writing This Down—I learned that Jay Shepherd had posted on his blog The Client Revolution this item recommending that you run a mile from shall. I took the liberty of posting this comment on Jay’s blog saying … Read More
