Recently, I noticed that a contract made it a condition to delivering notice that it be sent by (among other options) “reliable overnight delivery service”. Let’s consider the implications of “reliable”. Imagine that the contract required Acme to notify Widgetco if any widgets exploded. A widget exploded, so Acme sent a notice by Reliable Courier, Inc., for delivery the next … Read More
Check out the following, which is the text of an entire section: See the highlighted sentence at the end? It reminded me of that there’s another way of creating defined terms using autonomous definitions. At least for now, I’m calling this technique a “reverse autonomous definition.” Allow me to demonstrate how it plays out. Here’s an autonomous definition: “Affiliate” means … Read More
I’ll now revisit something I last wrote about in 2013: double materiality in the bringdown condition. (I see the term “double materiality” thrown around in other contexts, so I think it’s best to be specific.) The Theory Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified … Read More
Longtime readers will be aware that I roll my eyes at the notion of relying on contract language that has been “tested” by courts. As I say in a 2006 blog post, “Why rely on language that resulted in litigation? Instead, express any given concept clearly, so you don’t have to gamble on case law breathing into it the desired … Read More
Here’s an instance of the phrase greater or lesser: Unobjectionable, right? Here’s another instance: Unobjectionable too, no? Here’s another example of the same sort: That’s unobjectionable too, right? Actually, the second and third examples don’t work. The first example refers to something getting bigger or smaller. So in that context, greater means “bigger” and lesser means “smaller”. By contrast, the … Read More
The post before this one—the one about a reference in an insurance policy to “insects, birds, rodents, or other animals” (here)—made me realize I have to restructure in one respect how A Manual of Style for Contract Drafting presents ambiguity. I put the discussion of ejusdem generis in the section of chapter 13 (Selected Usages) dealing with including. And I … Read More
I noticed this story from Iowa local news channel KCRG: An eastern Iowa veterinary hospital is suing its insurer in a dispute over the definition of an “animal.” … The lawsuit alleges that about 8:15 a.m. on Nov. 7, 2024, an adult deer crashed through one of the hospital’s windows and entered the building. “The deer rampaged through the property’s … Read More
Consider the shall in this sentence from a public-company merger agreement: As soon as practicable after the First Effective Time, the Exchange Agent shall, on behalf of all such holders of fractional shares of Parent Common Stock, effect the sale of all such shares of Parent Common Stock that would otherwise have been issuable as part of the Merger Consideration … Read More
Let’s fill a gap in A Manual of Style for Contract Drafting! MSDC has something to say about mutually agree, and it has something to say generally about reasonably modifying a verb, but it doesn’t say anything about reasonably agree. I’m here to tell you that if you’re contemplating using reasonably agree in a contract, you might want to hold … Read More
I’ve written about the defined term this Agreement more often than I might have expected. (See for example this 2018 blog post and this 2016 blog post.) Yet here I am writing about it again, because I’d like to have in one place all my arguments on the subject, including one I’ve articulated only recently—what’s under the heading “An Explanation.” … Read More
