Ken Adams

The Concept of “Tested” Contract Language

In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is “settled”). This argument has long … Read More

“Curly” and “Straight” Quotation Marks

I’ve been filling some gaps in my knowledge of Microsoft Word, and while browsing Word’s online “Help” database recently I was reminded of one of my favorite microtopics—“curly” and “straight” quotation marks and the role they play when you review contracts drafted by the other side to a transaction. In a serif typeface such as Times New Roman, curly quotation … Read More

“Notice” or “Prior Notice”?

Last February, Wayne Schiess, Director of Legal Writing at the University of Texas School of Law, asked me whether I had any views on a question that he had posed in his blog: Is there a difference between giving notice and giving prior notice? At the time my home office was draped in drop cloths, so my response was perfunctory … Read More

The Contract Drafter as Copyright Violator

[Update: Go here for my article on this topic.] A forthcoming Missouri Law Review article by Davida Isaacs—it was featured in a recent item on the Wall Street Journal’s Law Blog—discusses whether one could bring a claim for copyright infringement based on unauthorized copying of litigation documents. This article was also mentioned in an item by Gordon Smith on Conglomerate … Read More

Recitals of Consideration Under Canadian Law

In MSCD (¶¶ 2.64–71) and a Business Law Today article on the subject, I recommend strongly that drafters dispense with the traditional recital of consideration. The traditional recital of consideration is the consideration language that clogs the lead-in to the body of the contract in a majority of contracts. The language varies, but here’s an example of a lead-in containing … Read More

“Stockholder” or “Shareholder”?

Sometimes the distinctions that contract drafters are most vehement about are those that happen to be spurious. Consider, for example, the pointless debate over whether to use between or among in the introductory clause. (See MSCD ¶ 2.21.) It’s similarly unnecessary to make a fetish of using stockholder rather than shareholder—in contracts and elsewhere—when the corporation in question was formed under Delaware law.

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“Time is of the Essence”

I’m fond of invoking two overarching rules of drafting—“be consistent” and “use standard English.” I periodically mull adding a third. Possible candidates come and go, but a current favorite is “say what you mean.” In other words, don’t use stock phrases in the hope that a court will construe them in the way you intended. Instead, address issues head-on. A … Read More

Welcome!

Welcome to my new blog. And more generally, welcome to my new web site. They mark the beginning of a new adventure: Over the past several years, I’ve been devoting an increasing proportion of my time and energy to all things contract drafting. Now I’ve taken the final step and turned this engrossing sideline into my livelihood. As for the … Read More