Consider the following sentence: The Equipment will comply with the Specifications. What category of contract language is it? According to my categories-of-contract-language analysis, use of will would make it language of policy with respect to a contingent future event. But language of policy is only for the ground rules of a contract—stuff that applies, or happens, automatically. California law governs … Read More
Yesterday, after a seminar for a group from one of the major US law firms, a partner mentioned to me that clients are increasingly asking that the law firm draft contracts more clearly. I didn’t get any details, but I suspect that clients make this request when the contracts being drafted are commercial contracts. For mergers-and-acquisitions and other bet-the-company work, … Read More
Go here for the recording of the 8 November panel discussion in London hosted by UCL Faculty of Laws, with Mark Anderson as moderator and me as one of the panel members. Go here for more about the event, and see my four previous blog posts for some follow-up. I sure in heck haven’t watched it myself. Watching and listening … Read More
After Tuesday’s panel discussion in London I received the following email from a mid-level lawyer at one of the major English law firms: I thought you were great. I also thought that your contribution had a slight air of shouting into the wind—I agree with everything you say, but conceptually there is not a sufficient meeting of the minds elsewhere. … Read More
In the course of discussions in London, it became clear to me that I have few supporters in suggesting that drawing a distinction between endeavours standards—the US equivalent is efforts—is an invitation to confusion. The prevailing view is that of course best endeavours imposes a more exacting standard than does reasonable endeavours. I’m happily sticking to my guns, for two reasons. … Read More
Yes, yours truly is responsible for the quotation in the headline above, which is from this article in the Law Society Gazette. I also love that they quote my joke “93%” statistic as if I had intended it to be legit.
Yesterday evening I took part in a panel discussion in London organized by UCL Faculty of Laws and entitled “Dysfunction in Contract Drafting: Are the Courts, Law Firms, and Company Law Departments Stuck in a Rut?” (For more about the event, go here.) To give those present a sense of the dysfunction of mainstream contract prose, I opened the proceedings by … Read More
Last week I received an unusual request. I heard from a colleague of Michelle Schuld, of The J.M. Smucker Company. I’ll spare you and Michelle the full details, but the gist of it is that Michelle leads the business services team that oversees contracts for the entire company, and she’s an enthusiastic fan. Her colleagues wanted to know if I could … Read More
One can never have enough on efforts, it seems. Here are three notes on efforts. *** First, thanks to a reader tip I learned of this post on Sheppard Mullin’s Corporate & Securities Law Blog, entitled What Are “Commercially Reasonable Efforts” in M&A Transactions? Some observations. The post says as follows: New York courts have suggested that when parties fail to … Read More
Early this year I wrote about attempts to argue that changing traditional contract legalese is a bad idea, either because traditional legalese works (see this post) or because it might work (see this post). Well, I’ve encountered another article that makes the same sort of argument. In Contracts Part III: The Role of Legalese in Contract Drafting (here), published in something … Read More
