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
In my experience, people will turn out for continuing-legal-education sessions on contract drafting. For example, at those annual meetings of the Association of Corporate Counsel that I’ve attended, the sessions on contract drafting have been mobbed. And turnout at last week’s CLE event organized by the Idaho State Bar (see this post) conveyed the same message. So, bar associations, if … Read More
In the discussion with Brian Buckham that gave rise to today’s other post on indemnification, Brian also mentioned use of the triplet for, from, and against in indemnification language. So I looked into that too. As far as I can tell, for, from, and against were originally linked to indemnify, hold harmless, and defend, as in the following from EDGAR: … Read More
Another of the speakers at last week’s CLE session in Boise organized by the Idaho State Bar (see this post) was Brian Buckham, of IDACORP, Inc. and Idaho Power Company. Brian told me about a basic issue relating to indemnification language that I hadn’t thought of previously, and he was kind enough to follow up with a couple of citations. … Read More
At last Friday’s CLE session in Boise, I sat in on a lunchtime presentation by Ken Howell, of the law firm Hawley Troxell, on recent actions by the Idaho legislature that have a bearing on business. Obviously, I wasn’t in the target audience, but Ken caught my attention when he mentioned how, in connection with some tax legislation, the legislature … Read More
