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.
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