I’m reconciled to the fact that every so often I’ll change my mind on some issue and thereby render obsolete some portion of my writings. In this article and in MSCD 7.34, I propose a definition of reasonable efforts that you might want to use in sensitive contexts. Well, in the course of reviewing for the umpteenth time my manuscript … Read More
In this post I discussed language to use when incorporating into a contract terms stated in an ancillary document—including a web page—that isn’t attached to the contract. I subsequently invented the term “virtual attachment” to describe any such ancillary document. (If you can think of a better term, I’d be delighted to hear it.) One issue I didn’t discuss in … Read More
I’m contemplating writing an article or blog post about law firms using “practice support lawyers” (also referred to as “staff attorneys”) to draft contracts. If you’re a practice support lawyer in the U.S., the U.K., or elsewhere and would be interested in discussing this topic with me, please contact me. I wouldn’t use your name, or that of your firm, … Read More
It’s commonplace for contracts to impose on a party a duty to take a particular action even though that action has no nexus with the one or more other parties. Here’s an example: Each party shall pay all expenses that it incurs in connection with the transaction contemplated by this agreement. But if you think about, Acme doesn’t really care … Read More
In the past few months I’ve been introduced to some impressive information-technology tools. (Click here, here, here, and here to see the related posts.) My introduction to Litera IDS has been particularly memorable, given its functionality, the need it aims to meet, the lack of any real competition, and the fact that I had no inkling that it existed. Deepak … Read More
In this September 2006 blog post I examined the phrase form and substance, as in “an opinion of counsel in form and substance satisfactory to the Buyer.” That phrase, along with the variant form and content, is found in language of obligation requiring the parties to enter into a given contract or requiring one or more parties to deliver a … Read More
Let’s tour the universe of alternative defined terms. Alternative Defined Terms for Party Names In MSCD 2.40 I note that drafters sometimes give alternative defined terms for a party name (as in “Acme” or the “Company”). Doing so serves no purpose and inflicts on the reader the burden of remembering that Acme and the Company are one and the same. … Read More
Via Ray Ward of the (new) legal writer, I learned that Lowering the Bar had a take on the saga of the contract written in blood. I’d previously heard about this story but I didn’t think it had much bearing on what I do—my notion of what falls under the rubric “contract drafting” isn’t broad enough to include handy hints … Read More
Don’t use Etc. in section headings, as in “Effect of Merger, Consolidation, Etc.” It conveys the impression that the drafter couldn’t be bothered to come up with a suitably all-encompassing heading. And it’s hardly informative. Some drafters get quite carried away with using Etc. in headings. A UST Inc. credit agreement filed with the SEC on July 3, 2007, uses … Read More
Today’s case is Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159 (Mont. 2007). (Click here for a copy.) In order to build a crude-oil pipeline in Montana, Cenex acquired easements from landowners by entering into right-of-way agreements with them. The agreements contained the following provision: [Grantors] do hereby grant, sell and convey unto [Cenex] … Read More
