Those who consult MSCD will be familiar with the notion that it’s unnecessary and distracting to use initial capitals (“nitcaps,” to those in the know) when referring to the parts of a contracts. In other words, in cross-references the words section, exhibit, and schedule (among others) should be all lowercase. It follows that one should also use all lowercase letters … Read More
Thanks to Dan Schwartz (aka @danielschwartz), I learned of this Connecticut case. It involves an employment agreement between a town and one if its employees. The language at issue included the following: Based upon the annual performance evaluation, and at the [m]ayor’s sole discretion and recommendation, the base salary may be increased on July 1 of each fiscal year, subject … Read More
MSCD explains as follows how using the word notwithstanding in a contract can create problems: For one thing, notwithstanding operates remotely on the provisions it trumps; readers could accept at face value a given contract provision, unaware that it is undercut by a notwithstanding contained in a different provision. Furthermore, although a notwithstanding clause that refers to a particular section … Read More
This week I’ve had the distinct privilege of doing two back-to-back day-long “Drafting Clearer Contracts” seminars at De Brauw Blackstone Westbroek, the prominent Netherlands law firm. (I just wrapped up the second seminar.) In that regard, consider the following: De Brauw’s very handsome auditorium seats one hundred (see the photo below), but demand for the seminars exceeded the space available. … Read More
Last week I noticed this tweet by @BlakeReagan2: https://twitter.com/BlakeReagan2/status/472438086580707328 It has been a while since I’ve used contract as a defined term, so I grabbed the following examples at random from the U.S. Securities and Exchange Commission’s EDGAR system: “Contract” means all legally enforceable contracts, agreements, understandings, arrangements and commitments, whether written or oral, excluding Purchase Orders. “Contract” means any … Read More
At yesterday’s “Drafting Clearer Contracts” seminar in Aarhus, Denmark, for MHI Vestas Offshore Wind, one of the participants asked me whether I was familiar with the convention that has internal cross-references stated in initial capitals (Section 5.4) and cross-references to other contracts stated in all-lowercase letters (section 3.2 of the Distribution Agreement). I said I was unfamiliar with that convention, but that it … Read More
I’m now cooling my heels in Copenhagen. I just came from Aarhus, Denmark. Let me tell you about that part of my trip. Tuesday, May 26 I arrived in Aarhus after an overnight flight via Amsterdam and Copenhagen. I went there to give an in-house “Drafting Clearer Contracts” seminar for MHI Vestas Offshore Wind, a manufacturer of wind turbine generators. … Read More
There’s no end to the weirdness that drafters dream up. Evidently, it’s not enough that we have a choice between hereby indemnifies and shall indemnify (see this 2006 blog post). Recently I saw an additional variant, shall indemnify and keep indemnified. It appears in hundreds of contracts on the SEC’s EDGAR system. It’s analogous to shall inflate the balloon and keep … Read More
The answer to the question in the title is obviously, “What the … !” But asking that question provides me with another stick with which to beat the notion, expressed in English caselaw (see this post) and newsletters put out by English law firms, that all reasonable endeavours represents a more exacting standard than does reasonable endeavours. In terms of semantics, … Read More
Yesterday’s “Drafting Clearer Contracts” seminar for the Utah State Bar included something new and different—an hour on professionalism and ethics. Legal ethics can be a narrow topic, but with the addition of “professionalism,” I allowed myself to expand the discussion to address different ways one can create problems for oneself in the contract process by being sneaky and the bad things … Read More
