Such as is ambiguous—it might be unclear whether the clause it introduces serves to reduce the scope of the class represented by the preceding noun. This can result in contract disputes. Consider the following sentence: Richard collects books about painters such as Botticelli and Donatello. Given the general nature of the class in question (painters) and the narrowness of the … Read More
This past Friday and Saturday I was in Atlanta, at Emory Law School’s conference on “Teaching Drafting and Transactional Skills: The Basics and Beyond.” (Click here to go to the relevant page of Emory Law School’s website.) The conference was organized by Tina Stark, an Emory professor and the executive director of the school’s new Center for Transactional Law and Practice. … Read More
In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause: the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial penalty, or (2) is … Read More
A couple of months ago, reader Kent asked me what I thought about using parentheses in contracts. Here, belatedly, is my answer: In regular prose, parentheses (namely round brackets, like those enclosing these words) are used to offset text that constitutes an explanation or aside. The limited and stylized prose of contracts is generally not the place for explanations and … Read More
Reader David recently posed the following question: I have a question for you that has bugged me for several years. From time to time, my company shares company-related information with a third party and, before doing so, enters into a confidentiality agreement (CA) [also known as a nondisclosure agreement—KAA] with the third party. Our CA has a term of five … Read More
Reader Steven Sholk sent me a case today. I found it of interest, but not for the reason he anticipated. What caught my eye was the phrase during continuance of this agreement. A search of the SEC’s EDGAR database showed that it’s not a complete rarity: it occurs in about 200 contracts filed in the past year. Here’s what Garner’s … Read More
Reader Larry Bell pointed out to me that the April 2008 issue of Corporate Counsel’s Quarterly contains an article by the publisher’s editorial staff entitled “Best Efforts Clauses.” I’m afraid that I can’t provide a link, as I have only a hard copy. When it comes to guidance on drafting usages, I’m not particularly a fan of big-is-better, and this … Read More
I recently posted this item discussing Lexicon, a tool for organizing and checking defined terms. Lexicon’s website contains a page discussing “The Seven Deadly Sins of Defined Terms.” Among the sins described is the following: Overlapping Definitions–When one Defined Term is contained within another, confusion can arise. For example, if (1) “Company,” (2) “Company Promissory Note,” (3) “Guarantee,” and (4) … Read More
It’s that time again: I’m looking for a company that would be interested in taking part in a contract-redrafting project with my class at the University of Pennsylvania Law School. The idea is that I’ll select one contract out of those submitted by June 15. In the fall 2008 semester my class will redraft all or part of it, and … Read More
Considering having me do an in-house seminar but want to know more? Then I suggest you might want to have me give you and any other decisionmaker at your organization a run-through of whichever of my seminars interests you, “Contract Drafting—Language and Layout” or “The Structure of M&A Contracts.” We’d use GoToMeeting or WebEx so that you could see my … Read More
