In this recent post I wrote about a Bryan Garner tweet on the subject of including but not limited to. Shortly after, Garner posted “LawProse Lesson #226” on the same subject. Since his post offers more detail than did his tweet, I thought I should check it out, but I found that it reflects his unhelpful approach to contract language. Let me … Read More
Remember without limiting the generality of the foregoing? (See MSCD 13.763–70 and this 2006 post.) Well, allow me to introduce you to its equally evil twin, in furtherance of the foregoing. They serve the same function, to the extent they can be said to perform any function. In fact, they’re sometimes conjoined: in furtherance of the foregoing and not in … Read More
Note use of hereby enter into in the following Pleistocene-era lead-in: NOW THEREFORE, the parties hereby enter into this Agreement to set forth their mutual promises and understandings, and mutually acknowledge the receipt and sufficiency of valuable consideration in addition to the mutual promises, conditions and understandings set forth below. And note the same in the following concluding clause: IN … Read More
Keith Bishop—he of the California Corporate & Securities Law blog—was kind enough to tell me about this post, dealing with a dispute over the meaning of the phrase “within 30 days prior to” in the context of the time period for exercising an option. The court opinion in question is Wilson v. Gentile, 8 Cal. App. 4th 759 (1992) (here). Here’s how the … Read More
I have a mixed relationship with the law-school world. On the one hand, an increasing number of instructors use MSCD as a course text. On the other hand, people from law schools are among the most ardent defenders of traditional contract language that I have encountered. So I was interested to see this post on ContractsProf Blog by Nancy Kim, … Read More
Table 2 in MSDC chapter 3 displays an assortment of suboptimal ways to impose an obligation on a contract party that’s the subject of a sentence. I use shall, of course (as I explain in this article); the suboptimal variants include agrees to, undertakes to, and commits to. Well, I’m happy to announce that I’ve discovered another suboptimal variant, is bound to (and … Read More
[Update: See also this follow-up blog post dated 14 September 2015.] Thanks to @traduccionjurid, yesterday I learned of the following tweet by Bryan Garner: Yes. Every contract should define "including" as meaning "including but not limited to." Then never use longer phr. https://t.co/Oyu44bcs8j — Bryan A. Garner (@BryanAGarner) August 20, 2015 Garner is in a class of his own as … Read More
Last year someone—I’ll call him George—hired me to analyze for him a sentence in a contract. George had sold his business. Part of the purchase price was to be paid in an earnout: after the closing of the sale, the buyer was to make up to three additional payments to George if in the three years after the closing of the … Read More
One interesting tidbit in the Tim Cummins post I discuss in this post is his reference to a court opinion involving a dispute over meaning of the word “new”. It’s Reliable Contracting Grp., LLC v. Dep’t of Veterans Affairs, 779 F.3d 1329 (Fed. Cir. 2015) (PDF copy here). The issue in that case was whether generators that had never been … Read More
Earlier this month I felt compelled to respond to a critique by Tim Cummins of an article I had co-authored. (See this post.) Tim is head of the International Association for Contract & Commercial Management (IACCM). Since it’s safe to assume that Tim won’t be inviting me over for tea any time soon, there’s nothing preventing me from now commenting … Read More
