I recently saw in a contract the following provision specifying drafting conventions: Reference to any English legal term shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term. The contract in question is governed by English law. It follows that if the contract uses, say, … Read More
Yesterday I gave in New Jersey, before a good crowd, my last “Drafting Clearer Contracts” seminar for West LegalEdcenter for the first half of the year. I have a couple of other seminars coming up, notably one for a state government agency early next week, but things are winding down for the summer. As far as seminars go, it’s been … Read More
In this post on his Connecticut Employment Law Blog, Daniel Schwartz tells an odd story, one that he first saw in Wolters Kluwer’s Employment Law Daily (here). What Happened An employee of Chanel’s fashion division was terminated. As a condition to being paid severance, she was asked to sign a “separation and release agreement” that, among other things, stated that … Read More
You can find on ContractsProf Blog two reviews of the third edition of A Manual of Style for Contract Drafting. Go here for a review by Daniel D. Barnhizer, professor at Michigan State University College of Law, and go here for a review by Irma S. Russell, dean and professor at the University of Montana School of Law. In this … Read More
Here’s what Garner’s Modern American Usage has to say about generally: generally has three basic meanings: (1) “disregarding insignificant exceptions” <the quality of the acting is generally very high>; (2) “in many ways” <he was the most generally qualified applicant>; and (3) “usually” <he generally leaves the office at five o’clock>. In contracts, the word generally appears in standard phrases … Read More
The problem with the word usually isn’t just that it’s vague. Instead, it’s that it exhibits the free-floating vagueness that we previously encountered in substantially (see this 2011 post)—vagueness uncoupled from a reasonable-person standard. How often does something have to occur for it to occur usually? Who knows. I’m not comfortable with that level of vagueness. A suitable fix might … Read More
For lawyers unwilling or unable to overhaul their traditional contract language, the excuse of choice is that traditional language has been “tested”—if you meddle with it, you’re exposing yourself to all sorts of risk. I discussed in this 2006 post how the notion of “tested” contract language is nonsense, and I revisited the issue in this 2012 post, as well … Read More
The serial comma is the comma used immediately before the and or or preceding the final item in a list of three or more items. I wrote about the serial comma in this 2010 post, but I revisit it now because something caught my eye in Garner’s Modern American Usage. Here’s what it says on page 676: Whether to include the serial comma has sparked … Read More
If they want to avoid causing problems for themselves, parties to a contract should bear in mind that the law interacts with contracts in various ways: The law determines whether the parties have an enforceable contract, as opposed to an informal, and unenforceable, agreement. (For example, in common-law systems a contract promise has to be supported by consideration or by … Read More
Here’s how Wikipedia describes “learned helplessness”: Learned helplessness is the condition of a human or animal that has learned to behave helplessly, failing to respond even though there are opportunities for it to help itself by avoiding unpleasant circumstances or by gaining positive rewards. Sound familiar? When it comes to contract language, I think of learned helplessness whenever I encounter people … Read More
