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The Ten—Uh, 11—Commandments of Drafting Business Contracts

Inspired by this morning’s post about not making contract language too informal, here are my 11 commandments for drafting business contracts: Contract language should be clear. Contract language should be only as complicated as it needs to be. Contract language should be precise. Contract language should omit redundancy. Contract language shouldn’t say the same thing twice. Contract language should be … Read More

Contract Language Shouldn’t Be Too Informal

[Updated 6:30 p.m., 16 May 2022 In a comment to this post, Kyle Mitchell says, “Conforming to a guide [MSCD] that bans informal language wouldn’t be good for my clients.” I’ll now try to clear some things up. Business contracts being too informal is not a problem! Business contracts being too legalistic? Now that’s a problem! In this post, I … Read More

“24/7” and the Limits of Jargon [Updated: It’s Actually Informal!]

[Updated 10:30 p.m. ET, 9 May 2022: Thanks to Josh’s comment, I now have a different take on 24/7. It’s not limited to contracts—one hears 24/7 in all sorts of contexts. So I don’t think it’s jargon. Instead, it’s informal. I suspect that it’s more common in speech than in writing; that’s often the case with informal usages. But it’s … Read More

Contract Drafting and the Tragedy of the Commons

You’re familiar with “the tragedy of the commons,” right? Individual users have open access to a resource. In using that resource, they’re unconstrained by formal rules or shared social structures, so each user acts independently according to their own self-interest. But that’s inconsistent with the common good, because through their uncoordinated action, users deplete that resource. Hence the tragedy. The … Read More

“Drafting Corporate Resolutions,” Rescued from Oblivion

A casualty of the fourth edition of A Manual of Style for Contract Drafting was what had been chapter 20 of the third edition, entitled “Drafting Corporate Resolutions.” I figured that the book had gotten big enough that that chapter, which doesn’t have anything to do with contracts, would be clutter. But that chapter is a good example of what … Read More

Misapplying Sale-of-Goods Concepts to Services

Selling services is very different from selling stuff, so contracts for one are different from contracts for the other. Yet drafters are prone to deploying in contacts for the sale of services concepts that make sense only for selling goods. One example of that is saying that services are being sold “as-is.” When you sell a car “as-is,” that means … Read More

Keep Separate the Date of the Contract and Timing of Performance

As a companion piece to this blog post from last week about putting the date of the contract in the introductory clause, in this post I’ll explain why it’s not a good idea to use as the date of a contract a date that reflects timing of performance. To capture past performance, drafters sometimes use in the introductory clause a … Read More

If Not “Master Services Agreement,” What?

Generally, action is better than gestures. But gestures can lead to action, so I’m amenable to gestures. For example, perhaps ten years ago I was surprised to have a training participant suggest that I not use guys when addressing the men and women in the group. At first I wasn’t convinced, but now, no guys. Similarly, in the past few … Read More

M&A Drafting: Double Materiality Doesn’t Exist

I’ll now revisit something I last wrote about in 2013: double materiality. Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified by materiality: The Seller’s financial records contain no inaccuracies. The Buyer’s obligation to consummate the transaction contemplated by this agreement is subject to satisfaction of … Read More

How to Put the Date of the Contract in the Introductory Clause

Last week an exchange of emails with Alex Hamilton prompted me to rethink an aspect of the date you put in the introductory clause of a contract. That led to my doing this blog post over the weekend, which in turn led to this comment on LinkedIn that caused me to do further rethinking, which led to my badgering @writeclimbrun. … Read More