I noted with interest this article in the New Yorker by James Surowiecki. It’s about how a focus on incremental gains, in sports and elsewhere, has led to a “performance revolution.” It begins by describing how a “technological and analytical arms race is producing the best athletes in history,” but it goes on to describe similarly dramatic improvements in performance … Read More
During my public “Drafting Clearer Contracts” seminar in New York last Thursday, a participant mentioned the phrase to wit. Here’s what Black’s Law Dictionary has to say about it: to wit (too wit), adv. (14c) Archaic. That is to say; namely <the district attorney amended the complaint to include embezzlement, to wit, “stealing money that the company had entrusted to … Read More
I’ve just returned from from my third trip to London this year. The first was to speak at a conference; the second was to do an in-house seminar at one of the big English law firms; this time around, it was to do a public “Drafting Clearer Contracts” seminar for the Faculty of Laws of University College London. Here’s how … Read More
This from a reader who is director of legal services at a global company: The problem with a full commitment to adopting MSCD is that it takes a lot of work to get good at it. I’ve spent a lot of time with it—I even outlined, law-school style, the chapter on categories of contract language, to use as a cheat … Read More
Yesterday a reader sent me an extract from a contract, with the following note: I just received a sublease draft from my outside counsel. He was incorporating the default provisions from the Master Lease. It is nice to have a concrete example of how it provides two opportunities to get the number wrong! I figured out what he was trying to do. … Read More
Every so often an issue arises in a topic that I haven’t had occasion to think about in a while. Here’s an instance of that. Check out the following, caught fresh in the EDGAR lagoon (italics added): Buyer is hereby purchasing from the Sellers, and the Sellers are hereby selling to Buyer, free and clear of all Encumbrances, all of the … Read More
Usually, where one or more parties happen to be on signing a contract should have no bearing on that contract. It might be relevant for purposes of determining the governing law, but only if you fail to include a governing-law provision. So a general matter, nothing is accomplished by stating—whether in the introductory clause, in the signature blocks, or elsewhere—where one or more signatories happen to … Read More
In MSCD and in this 2011 post I discuss using want in recitals instead of wish or desire. But how about intend? I hereby propose a distinction in how to use intend in recitals. First, don’t use intend for matters addressed in the contract. For that, stick with want or, if you prefer, desire or wish: intend isn’t a good fit. You … Read More
Thanks to this item on Lexology by Kimarie Cheang of Holman Fenwick Willan, I learned that earlier this year, in the case of KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] SGCA 16 (here), the Singapore Court of Appeal had considered the implications of an obligation to use “all reasonable endeavours.” The court surveyed relevant caselaw in Singapore, England, and … Read More
There’s style, and there’s substance, no? Well, not quite. Some drafting decisions don’t affect meaning. That includes all decisions relating to the look of a document. It also includes some decisions regarding wording. Witless archaisms such as witnesseth don’t affect meaning. And consider Acme may purchase the Shares and Acme is authorized to purchase the Shares. I recommend using the version … Read More
