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
For this first post in an occasional series about contract lifecycle management (for more background, see this introductory post), Ashif Mawji, president of Upside Software Inc., was kind enough to take the time to speak with me. Q: Ashif, your contract lifecycle management (CLM) product is UpsideContract, which is now in Version 5. In a nutshell, what does it aim … Read More
My interest in contract language is largely a function of my interest in process. In particular, readers of this blog will be familiar with my interest in document assembly. An industry has built up around helping companies manage all aspects of the contract process; the discipline is referred to as “contract lifecycle management,” or CLM. (As a business catchphrase, it’s … Read More
Today’s case from the drafting hall of shame is a case recently decided by the Nebraska Supreme Court, Coral Production Corp. v. Central Resources, Inc., 273 Neb. 379 (Neb. 2007). This case arose out of a dispute between owners of fractional working interests in oil and gas assets. When Central put its oil and gas assets up for sale, Coral … Read More
The latest addition to the American Bar Association’s series of “ABA Book Briefs” podcasts is an interview with yours truly. In it, I talk for ten minutes about MSCD and some current issues in contract drafting. Click here to listen to it. Regular readers of this blog will find that the podcast doesn’t contain any earth-shattering secrets. But it does … Read More
Last year the New York Law Journal published my article “Copyright and the Contract Drafter.” I’d now like to revisit who owns copyright in a contract, outside counsel or the client. To set the scene, here’s an extract of my article: A client asks its law firm to draft a form of agreement for a new kind of transaction. The … Read More
