It’s worse than pointless to enumerate the elements in a definition section: it clutters up the works. The elements are in alphabetical order. That by itself is enough of an organizational framework. Nevertheless, some people enumerate the elements in a definition section. The normal way would be to have the first element be, say, section 14.1 of article 14. But … Read More
I’ve previously touched on “future facts”—statements regarding circumstances in the future—but I haven’t addressed the topic head-on. I fix that with this post. The Conventional Wisdom It’s easy to find future facts in contracts. What the ABA Model Stock Purchase Agreement says about future facts sums up the conventional wisdom: “Representations are statements of past or existing facts and warranties … Read More
I’ve spent some quality time lately with definitions of the defined term Event of Default. And I’ve seen some strange things. Here are three examples: enjoy! Here it seems as if the definition contains the defined term: The example below is basically the same, except the defined-term parenthetical is shifted earlier in the sentence, without making any more sense: An … Read More
Check out the highlighted sentences: Section 12.1 says how Myovant is required to pay invoices. Section 11.2 says Myovant is required to pay a given invoice in accordance with 12.1. In other words, section 11.2 imposes an obligation to comply with an obligation. If it were somehow unclear whether section 12.1 applies to section 11.2, it would be prudent to … Read More
These days I live something of an incrementalist life. For example, in an overnight switch I now pour oat milk, instead of cow’s milk, on my industrial quantities of granola, but I don’t expect to give up cheese anytime soon. And in an attempt stop using so many paper towels and so much plastic wrap, I currently use sponge cloths … Read More
Today I tweeted this image: The highlighted portion is of interest because the definition (The standstill period) is the same as the defined term (the “Standstill Period”). That doesn’t make sense: the whole point of defined terms is that they allow you to express a longer concept more concisely and consistently than you would otherwise. If the defined term is … Read More
Ken: I’m here with Mark Anderson, an English lawyer who specializes in IP transactions. He’s also a blogger and the co-author or editor of too many books related to contracts. I’ve mentioned him plenty on my blog, and we’ve done some interesting stuff together—just search for his name on my blog. Mark: I see you exhumed that photo from 2014. … Read More
Thanks to Glenn West, I now offer you for your delectation Gwynt Y Môr Ofto Plc v. Gwynt Y Mor Offshore Wind Farm Ltd & Ors [2020] EWHC 850 (Comm) (08 April 2020) (here), a decision of the England and Wales High Court (Commercial Court). It involves scary confusion over verb structures. A contract for sale of a wind-farm off … Read More
Recently I posted on LinkedIn two comments (here and here) regarding the distinction between simplifying a contract and making it clearer. In those comments I say that simplification relates to what you say in a contract whereas clarity relates to how you say it. What you say falls on a spectrum between simple and complex; how you say it falls … Read More
Recently I noticed blog posts written by thoughtful people under the auspices of prominent names. One is The Evolution to Modern Legal, by Jason Barnwell; it’s on the Legal Evolution blog, which is edited by Bill Henderson. The other is is here; the other is We Need a Legal Revolution, Not Reformation, by Leigh Vickery; it’s a guest post on … Read More
