How Statements of Fact and Preclosing Obligations Relate to Conditions to Closing

With some trepidation, I now tiptoe into law-and-economics territory. Specifically, how standards for statements of fact and preclosing obligations in mergers-and-acquisitions contracts relate to standards for conditions to closing. Widgetco and Acme (both private companies) enter into a contract under which Widgetco would acquire Acme. The contract provides for a delayed closing. Acme makes a statement of fact in the … Read More

Principles of Interpretation Aren’t “Rules of Grammar”!

A tipster with a sense of humor sent me a link to an opinion of the Minnesota Court of Appeals, Borth v. Borth, No. A21-0571, 2022 WL 90612 (Minn. Ct. App. Jan. 10, 2022) (here). This dispute involves our old friend, syntactic ambiguity. I’m not about to go into the details, because to stay sane, I have to ration the … Read More

Dual Verb Structures: “Is and Will Be”

You lucky people, here’s another in my sporadic posts on dual verb structures! This time, we have under the spotlight is and will [or shall] be. As with verb structures generally, you can do better than is and will be. Awkward Grouping One explanation for use of is and will be is that the drafter structured things awkwardly. Here’s an … Read More

Using “Including” for Stuff That Isn’t Part of the Class

Today I put this out on Twitter: Has anyone encountered an instance of someone seeking to use "including" to add to a class something that categorically would not otherwise be part of the class? For example, "fruit, including carrots." — Ken Adams (@AdamsDrafting) January 6, 2022 This question came to mind because it’s one aspect of including pathology that I … Read More

ECB USA, Inc. v. Chubb Insurance Co. of New Jersey: More Comma Sadness

If there’s one thing I’ve learned, it’s that you’d have to look far and wide to find a judge who has a clue about commas. Thanks to the opinion in ECB USA, Inc. v. Chubb Insurance Co. of New Jersey, No. 20-20569-CIV, 2021 WL 5989230 (S.D. Fla. Dec. 17, 2021) (PDF here), we have further reason for despair in that … Read More

“Shall Not Be Concerned To See To”

[Updated 3 Jan. 2022] It could be gratifying when no one notices that I’ve screwed something up. No egg on my face! But instead, it’s a little disconcerting. No one cares! Or Serious egg on my face later, when I repeat the mistake in print! In the original version of this post (published in 2018), I misunderstood entirely the usage … Read More

The First Rule of Enumerated Clauses

By popular acclaim—well, because three people on Twitter asked me to—I will now explain for you the first rule of enumerated clauses. I’d like to say that the first rule of enumerated clauses was recovered from one of the cuneiform tablets that constitute the Kültepe texts, found in Kanesh, an archaeological site in Kayseri Province, Turkey. But in fact, I … Read More

Pizza Digressions 2: Me and My Ooni Koda 16 Pizza Oven

In the early days of the pandemic, the fortunate among us had the luxury of wondering what to do with themselves in isolation. It seems that for many, the answer was, “Baking!” In particular, Ooni pizza ovens have been selling like crazy. If you find yourself in the company of people who own an Ooni pizza oven, be prepared for … Read More

Once Again, Delimiting Commas in Coordination

In this July 2020 post I discussed a feature I called “delimiting commas in coordination.” It’s a subtle topic, and over time I realized that my post wasn’t as clear as it might be. So now I permit myself take two *** This post considers a feature of comma use that might not be clear enough to rely on to … Read More