Ken Adams

In this November 2006 post I wrote about words that are fine in narrative writing but would be out of place in a contract. Well, I’ve thought of some more—therefore and related words such as thus, hence, and consequently. Here’s an example I just spotted: The term of this agreement will end three years following the date on which notice … Read More

Here’s a standard waiver provision: Waiver. No provision in this agreement may be waived, except by means of a writing signed by the party against whom the waiver is sought to be enforced. I find such provisions very odd. Let’s start by considering what a waiver is. There are two kinds of waiver: First, a contract might specify that Widgetco … Read More

I’m going over one of my contract redrafts. Here’s how I introduced a set of autonomous definitions: For purposes of this agreement, the following terms have the following meanings: You see this language, or some variation, in innumerable contracts. I’m not crazy about the way it groups the definitions, thereby leaving open the possibility that one defined term could have … Read More

In this May 2007 post I wrote about the signature-automation tool EchoSign. And my ACC Docket article with Brian Quinn mentions DocuSign. Well, there are other fish in that particular sea. I noticed that The Connected Lawyer—always a source of interesting information—recently posted about one of them, ConXPoint. Another is Sertifi. I’ve corresponded with John Stojka, a co-founder of Sertifi. … Read More

In this July 2006 post I said that although it’s standard to refer to “survival” of representations, it’s unhelpful to do so. I quoted language that I find much clearer. Well, it would seem that both the traditional language and my preferred language were found wanting in a 2007 case applying California law that I saw mentioned in the ABA … Read More

In February, the New York Law Journal published my article about the litigation between Cerberus and United Rentals. If you’re hungry for more on the subject, check out this article in the American Lawyer. I make a brief guest-appearance.

One frustrating aspect of my self-appointed role as freewheeling contract-drafting guy is that I’m not involved, day in and day out, in drafting contracts. As a result, I don’t have occasion to gain hands-on experience with the nifty information-technology tools that are now available to help the drafter. I wrote about a bunch of them in my ACC Docket article … Read More

Victoria Pynchon—she of the Settle It Now Negotiation Blog—asked me the following question: While I was practicing, it was common for the opposition to put signature lines on settlement agreements for the attorneys’ signatures. I always refused to sign these, saying, “I’m not a party to this contract and I don’t think my signature adds anything to it.” Now, on … Read More

Here’s another issues that cropped up during my Geneva seminars: Which is preferable, change in control or change of control? My instinct was that both usages are equally acceptable, and that was borne out by five minutes of research. Contracts filed on the SEC’s EDGAR system don’t seem to display a marked preferance for one usage over the other. And … Read More