[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
It’s a little after 4:00 a.m., I’m in a lounge at Bangkok’s airport, and my thoughts have turned to … contracts playbooks. You know—those scripts that tell a company’s contracts professionals how to respond to comments to the company’s draft contracts, or how to respond to the other side’s drafts. In connection with a consulting project I’m working on, a … Read More
A standard feature of commercial contracts is a section—usually entitled “Insurance”—that specifies the insurance coverage that one or more parties are required to maintain. I’m regularly surprised at how contract parties are willing to throw something together without input from insurers. For an antidote to that sort of improvised approach, see this post by Mark Anderson on IP Draughts.
Remember my article Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.? Well, it’s now in print, in The Scribes Journal of Legal Writing. Go here for a PDF. The citation would be to 16 Scribes J. Legal Writing 45 (2014–15). The article seeks to debunk a variant of the principle of interpretation known as … Read More
It’s not particularly elegant, but the notion of eating your own dog food is a recognized metaphor in the tech world. Here’s how Wikipedia describes it: Above is part of a post on Contract-Automation Clearinghouse. To see the rest, go here. Contract-Automation Clearinghouse is where I now put my posts on contract automation and related topics.
Tweets by @Jeena_Cho and @CherylStephens alerted me to this item by J. Kim Wright. The title is Conscious Contracts: Bringing Purpose and Values into Legal Documents. Go ahead and read it; it’s short. I’ll wait. You’re back? Good. In her tweet, Cheryl asked me whether there was room in my world for this concept. Well, I find what Kim has … Read More
I think it’s time I said something about right, title, and interest, no? You just know that right, title, and interest is a bit of inflated legal phrasing that serves only to make legal prose suitably sonorous. That the three elements are invariably kept in the same order is one sign that their function is incantatory and not substantive. But let’s look more … Read More
