You should avoid using in your contracts the word willful (alternative spelling wilful), as it’s ambiguous. This lesson comes courtesy of Judge Gerard E. Lynch of the Southern District of New York, in his opinion in Johnson & Johnson v. Guidant Corp., 2007 U.S. Dist. LEXIS 64114 (S.D.N.Y. Aug. 29, 2007). (Click here for a copy of this case.) This … Read More
Here’s a point that I don’t make in MSCD but will be sure to make in MSCD2: Don’t use in the recitals defined terms that are defined later in the contract. The job of the recitals is to introduce the transaction. If you put in the recitals a defined term that’s defined later, you force the reader to go in … Read More
Dick Wydick’s materials for our panel discussion at the ABA annual meeting included the following provision from the merger agreement for a transaction valued at more than $2 billion. (Like Dick, I’ve eliminated any identifying information.) As you read through it—I recommend a side order of Valium—ask yourself why Dick found it of interest. In the event that (y) Parent … Read More
A reader in Italy asked me about a short article that he had seen on www.breakingviews.com. I wasn’t familiar with this site, but it describes itself as “the leading international source of online financial commentary.” (Click here to go to the article; you’ll need to subscribe, or at least register for a free trial.) The article in question is about … Read More
My email in-box is overflowing with emails from Lexis notifying me of cases ostensibly relating to ambiguity. I fished from the torrent the following straightforward example of syntactic ambiguity. (Syntactic ambiguity arises out of the order in which words appear and how they relate to each other.) It’s from Active Zones of America, LLC v. SDV (USA) Inc., 2007 U.S. … Read More
I’ve intermittently pondered what to call the contracts one copies, in whole or in part, when drafting a new contract. Contracts Prepared for Use in Future Transactions First, consider those contracts that are prepared for use in future transactions and so contain blanks, placeholders, and perhaps suitable annotations. What should they be called? Did you say “forms”? I’m not keen … Read More
The Globe and Mail (the Canadian newspaper) has published my op-ed piece “>Behind the Scense of the Comma Dispute.” I hope you enjoy it!
Once more, I doff my cap to a reader of this blog. Steve Pappas—a Penn Law classmate—suggested to me that the construction on the one hand … on the other hand is often misused. It had never crossed my mind to investigate this usage. I’ve now done so, and I agree with Steve. The construction on the one hand … … Read More
I recently encountered this article about drafting a mediation settlement agreement. The fact that it was published by the Section of Litigation of the ABA reminded me that many litigators apparently dabble in contract drafting in order to draft settlement agreements. I find that a slightly scary notion, as the technical nature of contract drafting wouldn’t seem conducive to dabbling. … Read More
Today the Canadian Radio-television and Telecommunications Commission released a decision in the famous “comma case.” Click here for a copy of the decision. (You may recall that I acted as expert for Rogers Communications Inc. in this dispute; click here for my most recent post on this dispute.) This time the Commission sided with Rogers. This decision means that the … Read More
