Is absence of knowledge the same thing as knowledge of absence? Consider the following EDGARlicious example, followed by my variation: … the Company is unaware of any facts that would form a reasonable basis for any such claim. … to the Company’s knowledge, no facts exist that would form a reasonable basis for any such claim. And these alternatives: … Borrower is … Read More
When I think of American exceptionalism, I don’t think of grand political theories. Instead, I think of how the U.S. is one of only five countries that uses the Farenheit scale for everyday applications (the others being the Bahamas, Belize, the Cayman Islands, and Palau). Even more exceptional is the fact that the U.S. is the only country to state … Read More
Yes, I can see that you’re vehemently opposed to a recommendation I’ve made on a topic of interest to you. And yes, I know that you’ve been doing deals for twenty years. The problem is, for twenty years you’ve been relying on conventional wisdom. For twenty years, you’ve been paying the price for the lack of anything resembling coherent commentary … Read More
The current issue of Business Law Today, published by the ABA Section of Business Law, contains my article The Phrase Represents and Warrants Is Pointless and Confusing (here). How’s that for a direct title? This article is a boiled-down version of my recent article in the Tennessee Journal of Business Law (here). I omitted discussion of English law, use of only … Read More
In mentioning in the immediately preceding post (here) the U.S. Securities and Exchange Commission’s EDGAR system, where public companies are required to file their “material” contracts, I remembered the following email I recently received from longtime reader Patrick Grant: I get such a kick out of your descriptions of the EDGAR system I thought it would be fun to collect … Read More
In stating deadlines, one can use a vague standard backed up by a precise standard: Acme shall promptly, and in any event no later than 30 days after it learns of that breach, notify Widgetco of … Well, thanks to a tip from a participant at a recent in-house “Drafting Clearer Contracts” seminar I did in Palo Alto, I learned that some drafters … Read More
It’s a bad idea to use in contracts paired party-name defined terms that differ only in their final syllable: they force readers to work harder, and there’s always the risk that the drafter will by mistake use one defined term instead of the other. Today I asked people on Twitter to help me compile a list of such paired defined terms, and … Read More
Updated October 11, 2015: Gee, I go away for a couple of days and commenters have a party! Here’s where I end up on this: First, hereby purchases and hereby sells are both valid to effect sale of whatever it is. I checked with Chris Kunz, and she confirmed as much. Second, despite suggestions to the contrary in the comments, it doesn’t … Read More
Here’s what I say in MSCD 16.58–60: One way to signal the start of a new paragraph is to indent the first line. Another way is to put space between paragraphs. Typography professionals recommend that you not use both techniques. For example, Typography for Lawyers, at 136–37, says, “First-line indents and space between paragraphs have the same relationship as belts and suspenders. You only … Read More
Regular readers will be familiar with the MSCD enumeration scheme. It’s described in excruciating detail in MSCD chapter 4, as well as in this 2012 post. But I’m keenly aware that the MSCD scheme doesn’t appeal to everybody. This past week, that included a consulting client. That caused the scales to fall from my eyes: in addition to offering my exquisitely … Read More
