You remember my book The Structure of M&A Contracts? Yeah, that one. It was published in 2011, ebook only, using Thomson Reuters’s Proview platform. But for reasons that I never quite understood and would rather not dwell on, buying it was a nightmare. Every month or two I would receive an email from someone who had tried to buy it … Read More
This contains my first attempt at expressing something I’ve been mulling over for a while—the notion of “floating vagueness.” I’m prepared for it to end up in the dustbin. [Updated 25 June 2016: Hey guess what, it did end up in the dustbin! I found a way to express more simply the concepts I was groping for. My revised analysis will … Read More
In a spirit of adventure, I published on Thomson Reuters’ Legal Solutions Blog my article Litigating the Meaning of Contract Language? Consider Retaining an Expert. It’s not a long article, but they did it in two parts. Go here for part I; go here for part II. My thanks to Pam Chestek for bringing to my attention the case I … Read More
Here’s an oddity: to the extent it is able to do so. (Variants include to the extent that it is able to do so, to the extent she/he is able to do so, to the extent they are able to do so, and to the extent [insert party name] is able to do so.) A search on EDGAR pulled up … Read More
I’ve written about abuse of basis, as in on a timely basis. See this 2007 post. But silly me, I didn’t think of the most jargontastic variant, on an ongoing basis. Don’t ever use it. If you ever have, plead forgiveness from the gods of drafting. If you don’t believe me, here are some examples from the La Brea tar … Read More
Friends, there’s never a good reason to include periodically in a contract. Consider language of obligation: The Bank will provide the Client periodically with a statement of account for each Account, identifying Assets held in the Accounts. If I were the client, I’d sure want to be more specific that periodically, which could mean “at regular intervals” or just “from time … Read More
As a general matter, don’t use at all times. If you refer to a given period, if you say someone has to do something, if you say that things were a certain way, usually it follows that whatever it is applies at all times, unless you specify otherwise. Here are some unprettied-up examples from EDGAR: … at all times during … Read More
Behold my five-thousandth tweet: The first rule of Traditional Contract Drafting Club is: Notwithstanding anything in this Agreement to the contrary, the parties hereto ackn — Ken Adams (@AdamsDrafting) June 2, 2016 If I say so myself, I think it’s pretty funny.
In an article (here) that otherwise isn’t relevant to this post, I saw the following: Plain language contracts seem appealing but tend to be imprecise and are often used to mask pretty egregious terms. Using folksy words to tell someone you can terminate them at will without remedy and that they have no recourse doesn’t make it any better. I haven’t … Read More
As a credo, you could do worse than “Abstract nouns, bad! Verbs, good!” Using verbs instead of abstract nouns allows you to be more economical, and it ensures that you don’t play that favorite game of drafters, “Hide the Actor.” The word breach can be both a noun and a verb. I’ve improved the following examples by replacing the noun … Read More
