Contract drafting is facilitated if you find the simplest way to articulate a given meaning and then stick with it. That applies to the small stuff, too. Take, for example, together with. Often you’re better off trading two longer words for one shorter one—and: “Hotel” means the Site together with [read and] the Buildings. At other times, with does the … Read More
Who knows what ambiguity lurks in the heart of contracts? Well, reader Steven Sholk has an inkling, because he’s the one who told me about Graev v. Graev, 2008 N.Y. LEXIS 3252 (N.Y. Oct. 21, 2008), a case that involves the meaning of the word cohabitation. As part of their divorce settlement agreement, Mr. Graev agreed to pay Mrs. Graev … Read More
Over the course of the past few years I’ve been working sporadically on a shortish (16,000 words) manuscript entitled “The Structure of M&A Contracts.” It discusses the function of the different categories of provisions in an M&A contract (representations, pre-closing obligations, conditions, indemnification, and termination provisions), the interplay between those categories of provisions, and the structural issues that routinely arise … Read More
In my writings and during my speaking engagements, I talk up the benefits of overhauling your contract process, templates and all. In the past few weeks, I’ve been wondering if given the current travails—whether you call it a recession or something else—I should adjust my recommendations. Anyone looking to start something new has likely been doing some soul searching. For … Read More
Last June, Hexion Specialty Chemicals announced that it was walking from its $10.6 billion acquisition of Huntsman Corp. on the grounds that the capital structure for the combined entity was no longer viable and would render it insolvent. Hexion filed suit in Delaware, and on September 29, 2008, Vice Chancellor Lamb issued his opinion. One of Hexion’s claims was that … Read More
Yesterday I was at Dorsey & Whitney’s Minneapolis office. I gave my “Language and Layout” seminar there last year, but yesterday’s event was different. It was billed as “A Conversation with Ken Adams.” Bryn Vaaler—Dorsey’s professional-development partner—and I parked ourselves on the stage in Dorsey’s conference center and chatted for an hour about the world of contract drafting. But what … Read More
For diehard fans of and and or—you know who you are!—the case of Harrity v. Target Corporation, Civ. No. 07-3958 (D. Minn. Oct. 6, 2008), might be of modest interest. The plaintiff was seeking reimbursement under Target’s medical insurance plan, but the court granted summary judgment. Among other things, the following plan language was at issue: those health services and supplies … Read More
A few months ago a reader asked me what I thought of the phrase default or event of default. Here, belatedly, is my answer, along with my thoughts on a related phrase, has occurred and is continuing: “Default or Event of Default” The phrase default or event of default is a fixture of loan agreements. Usually default and event of … Read More
Another day, another unexpected contract usage. Today, I saw the following: Upon issuance of an oral or written work, service, or purchase order, Company thereby hires Contractor to promptly provide the products, materials, and supplies and perform the services set forth in the Order. What caught my eye was the use of thereby. It raises the issue of the limits … Read More
When in my seminars I discuss the phrase including without limitation, I’m sometimes asked what I think of for example. Here’s my answer: Don’t use for example in contracts to introduce lists of items, but by all means use it to introduce illustrative scenarios. First, let’s consider including. It can be used to introduce a list of obvious members of … Read More
