Jane K. Winn, professor at the University of Washington School of Law, recently asked me the following question: I’m trying to create an exercise for my first-year contracts class that would teach the students how to draft a good “Battle of the Forms” UCC § 2-207 term to block application of the counterparty’s boilerplate. The “Battle of the Forms” problem … Read More
On 22–24 January 2014, I’ll be in London, at a forum entitled “Advanced Contract Risk Management for the Utility and Power Generation Industry.” (For more information, go here.) In particular, on 24 January I’ll be presenting a half-day workshop entitled “Effective Contract Language, Efficient Contract Process.” I’m looking forward to it. The roster of speakers looks interesting, and companies around the world will … Read More
Now hear this! Below are cities and dates for my public 2014 “Drafting Clearer Contracts” seminars in the U.S. for West LegalEdcenter. You’ll be able to register starting early December, once West puts the information online. We might add another city or two. Meanwhile, save the date! Dallas, TX (March 27, 2014) Atlanta, GA (April 3, 2014) Chicago, IL (May … Read More
In this post I quote Tim Hadley’s email to me regarding how the other side to a transaction responded to his MSCD-inspired drafting. An interesting additional aspect to Tim’s interaction with counsel representing the buyer was the cover note he added to the draft. Go here to see a PDF copy. Tim was prompted to add his cover note by … Read More
For purposes of implementing clearer contract language and a more efficient contract process, change at the level of the organization allows change to happen more quickly. But given that inertia holds sway at most organizations, I suspect that change is mostly being implemented by individuals, whether operating on their own or within organizations. Last week I encountered an example of … Read More
Isaac Newton defined inertia in his first law of motion. Here’s how his Philosophiæ Naturalis Principia Mathematica describes inertia: The vis insita, or innate force of matter, is a power of resisting by which every body, as much as in it lies, endeavours to preserve its present state, whether it be of rest or of moving uniformly forward in a straight line. If I … Read More
There’s been a lot of chatter recently about the relative prospects of traditional law firms (“BigLaw”) and competitors such as Axiom (“NewLaw”). Much of that discussion was prompted by this post by George Beaton, an Australian consultant. It’s a discussion that I’ve had no trouble steering clear of. That’s because as I see it, there’s nothing much to choose between … Read More
I’m delighted to announce that on 8 April 2014 I’ll be presenting a public “Drafting Clearer Contracts” seminar hosted by SAP, a world leader in enterprise software and software-related services. It will be held at SAP’s headquarters in Walldorf, outside of Heidelberg, Germany. Earlier this year I did seminars in Hamburg and Copenhagen hosted by ECE, the shopping-center developer, and Maersk … 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
The implications of using either or both of the phrases arising out of and relating to is a topic of perennial interest. (For example, see this post, this post, and this post.) So today an article in Corporate Counsel entitled 3 Pitfalls in Contractual Choice-of-Law Provisions (here) caught my eye. It’s by two partners and an associate at McDermott Will & … Read More
