MSCD 13.105 deals with provisions that exclude certain types of damages. Here’s an example: Neither party will be responsible or held liable for any consequential, special, or incidental losses or damages. Such provisions are often found in sections with the heading “Limitation of Liability.” Seeing as I’m not a fan of the word limitation (see this post), I’m experimenting with … Read More
Transactions: The Tennessee Journal of Business Law has just published my book-review essay Dysfunction in Contract Drafting: The Causes and a Cure. (Go here for a PDF copy.) It’s a critique of the book The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design, by Mitu Gulati and Robert E. Scott. I know what you’re thinking: “Law … Read More
I’m pleased that this fall I’ll be teaching at Notre Dame Law School. Well, really this summer—the course will be three weeks long and will start August 18, a week before classes normally start. What makes this a particularly good arrangement for me is that it will be an intensive course, with an entire semester’s worth of learning crammed into … Read More
In this post from a few days ago, you’ll see that some tenacious readers and I have been going at it hammer and tongs, debating what (if anything) to use instead of with respect to in various contexts. Everyone seems to agree that in most contexts one can be more economical than with respect to. So our debate has focused … Read More
Thanks to this post on Peter A. Mahler’s New York Business Divorce blog, I learned that in a recent opinion of the New York Supreme Court (despite the name, a lower court), a judge considered the implications of either … or. I wasn’t about to let that pass without chiming in—regular readers will know that I have a thing about … Read More
After last Thursday’s “Drafting Clearer Contracts” seminar in Dallas for West LegalEdcenter, I had the pleasure of having dinner with longtime reader and commenter Chris Lemens. He asked me about with respect to. This one’s for you, Chris. According to Garner’s Modern American Usage, “The phrases with respect to and in respect of are usually best replaced by single prepositions.” … Read More
A reader asked me whether I could recommend any MSCD-ish resources on drafting consumer contracts. The short answer is that I’ve never looked for any such resources, although I recall that the 1981 book Writing Contracts in Plain English was a pioneering work in this field. Readers, can you recommend anything? I’ll now attempt slightly longer answer. I think that much … Read More
The word actually doesn’t have many friends. Commentators think it’s overused; see this article by Claire Carusillo in the New Republic and this article by Heidi Stevens in the Chicago Tribune. But in contracts, the problem with actually goes beyond overuse. In general discourse, actually, meaning “in fact,” signals difference of opinion or disagreement over facts. Contracts aren’t for debating, so as a … Read More
There’s always something that needs fixing. Yesterday, I was inclined to carve on my forehead, in mirror-script, “Stop using limitation instead of limit!” Consider the following from Garner’s Modern American Usage: limit; limitation. A limit is whatever marks an end to something, as in city limits or speed limit. A limitation is the extent of one’s capacity or a constraint that … Read More
When you refer to something in a contract, the meaning can vary depending on the timeframe. For example, MSCD 13.4 and this 2009 post discuss how a contract reference to “subsidiaries” could mean subsidiaries at the time of signing or at any given time in the future. It’s best to avoid confusion over the intended meaning by making it explicit. … Read More
