Blog

“Between” Versus “Among” When Listing the Parties to a Contract

I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by … Read More

Mark Anderson, Google’s Patent Purchase Agreement, and Public Shaming

If you wish to witness an old-fashioned beatdown, scurry over to the IP Draughts corner of the marketplace of ideas to see Mark Anderson dismantle—Marquess of Queensbury rules!—a Google patent purchase agreement (here). I too am prone to meting out vigilante justice. Go here for my analysis of another Google contract, a services agreement. But it’s a model of professionalism compared … Read More

Variations on “Breach”

Choices in contract drafting come in big and small packages. Today, let’s think small; let’s think breach. Count Noun or Mass Noun? Consider the following: It will not constitute [a breach] [breach] of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose … Both of the bracketed alternatives work. How so, you ask? Well, … Read More

The UT System Administration Contract Office Goes All-In

[Updated June 30, 2015: Here’s an update from Blake: In our job search, we stated that knowledge of MSCD was a “preferred qualification.” Out of dozens of qualified applicants, we narrowed the pool to four people. We gave all four candidates a “homework” assignment of drafting a contract in accordance with MSCD. (We assigned the candidates random numbers and graded … Read More

My New Article on Drafting and Negotiating International Contracts

Go here to see Top Ten Tips in Drafting and Negotiating International Contracts, co-authored by me and René Mario Scherr, Tetra Pak’s Regional General Counsel, South Asia, East Asia & Oceania. If that link doesn’t work for you, go here for a PDF. You’re welcome. I met René about seven years ago, at one of my seminars. We’ve kept in … Read More

Two Language-of-Performance Variants

Last night I saw the following tweet from @kemitchell: @KonciseD Can I sub "now assigns" or "presently assigns" for "hereby assigns" to exclude the habitual? Matter how the K is dated? MSCD 3.20 — Kyle E. Mitchell (@kemitchell) April 27, 2015 Ah, variants on a category of contract language, namely language of performance! Here’s the relevant bit of MSCD 3.20: … Read More

“Anno Domini”? In a Contract?

There I was, innocently looking at the form certificate of amendment kindly made available by the Delaware Secretary of State (here), when the concluding clause caught my eye: It contains a number of usages worthy of comment, but what grabbed my attention was the “A.D.” placed before the blank for the year. Is it possible that someone might be confused as to whether … Read More

Contribute an Assignment to my Law-School Course

This August I’ll be at Notre Dame Law School again, teaching a three-week intensive course in contract drafting. As always, the course will feature a series of written assignments. The first assignment is gentle, to ease my students into the subject. The scenario is that a senior lawyer asks a junior lawyer to revise a given draft to reflect a new deal term. I … Read More

“Their” Used As a Singular Pronoun … in Contracts?

The corner of Twitter that’s interested in English usage has recently been all aflutter over that popular topic, they used as a singular pronoun, as in “If a patron doesn’t like the opera, they are free to leave.” It seems to have been sparked by this Wall Street Journal article by @bgzimmer. The article suggests that copy editors are increasingly willing to accept … Read More

Do You Listen to Music While Drafting Contracts?

I saw this tweet a couple of days ago: Tonight's legal drafting music is Daenerys Targaryen's theme music. Haunting stuff, melancholy contract drafting. https://t.co/yIANVTHEUV — Jas Purewal (@gamerlaw) April 20, 2015 It prompted the following thoughts: Do you listen to music while drafting? If so, what do you listen to? I don’t, at least not while engaged in the task. … Read More