I recently reviewed for a company a draft settlement agreement that had been prepared by outside counsel retained by the company. I thought the draft needed help. In particular, I found the recitals bloated and vague: RECITALS A. As of the date of this Settlement Agreement a dispute exists between AcmeTek and Widgetz regarding the contracts made between them. AcmeTek … Read More
Regarding use of the word parties as a defined term, MSCD 2.42 says the following: [D]o not use the defined term the Parties. It ostensibly spares the drafter from having to refer throughout a contract to the parties to this agreement, but one can simply refer to the parties, because such a reference could not conceivably be construed to mean … Read More
At the ABA Section of Business Law annual meeting, which this year is being held in San Francisco, I’ll be on the panel for a program entitled “How to Write Better Business Documents.” It’s being sponsored by Business Law Today and will be held on Friday, August 10th, from 2:30PM to 4:30PM. I’ll be speaking about—guess what?—contracts. It should be … Read More
In litigation between author Clive Cussler and Crusader Entertainment over production of the movie (and box-office flop) “Sahara,” a jury recently ordered Cussler to pay Crusader $5 million in damages. News accounts (including this one) noted that the jury foreman had said that the contract between the two sides played a big part in the deliberations. The foreman found the … Read More
I posted my first blog item a year ago yesterday, so I thought that a bit of navel contemplation was in order. In this item on the theme of “Niche Thyself,” Kevin O’Keefe of Real Lawyers Have Blogs recently quoted with approval the notion that an entrepreneur aims to create something that is of high value to customers and is … Read More
Don’t worry—I’m not going to get on my representations and warranties hobby-horse again. Instead, I just want to point out some terms that are inappropriately used in relation to representations. As I say in MSCD 3.113, one breaches an obligation, but not a representation. Instead, a representation, like any statement of fact, is either accurate or inaccurate. If I tell … Read More
I’ve recently been thumbing through Translating Law, by Deborah Cao, associate professor at the School of Language and Linguistics, Griffith University, Queensland, Australia. It appears to be a useful resource for those who find themselves translating legal documents. I would have thought that they need all the help they can get. In particular, I don’t envy anyone called on to … Read More
The word “indenture” is something of an oddity. Here’s how Black’s Law Dictionary defines it: A formal written instrument made by two or more parties with different interests, traditionally having the edges serrated, or indented, in a zigzag fashion to reduce the possibility of forgery and to distinguish it from a deed poll. Obviously we no longer produce contracts with … Read More
Each law firm where I worked doubtless had a written records-retention policy, but I was blissfully unaware of it. Instead, I and at least some of my colleagues did whatever we thought appropriate. In that regard, the one question that seemed to crop up quite often was whether after a deal closes one should retain in the files for that … Read More
A recent Illinois case, Regency Commercial Assocs., LLC v. Lopax, Inc., 2007 Ill. App. LEXIS 476 (Ill. App. Ct. May 4, 2007), provides a great example of how syntactic ambiguity can really make a mess of a contractual relationship. (Click here for a copy of this case.) The predecessor of the plaintiff Regency sold to the defendant Lopax land to … Read More
