The earnest cliché ready, willing, and able occurred in 102 contracts filed on the SEC’s EDGAR system in the past year. That’s not a whole lot, but it’s not nothing either. Here are some examples: Borrower and Bank recognize and agree that the Origination Fee … is a material inducement for Bank to make the Loan and for having Bank ready, willing … Read More
Last month the Minnesota Supreme Court issued its opinion in In re Petition of S.G., 828 N.W.2d 118 (Minn. 2013) (PDF copy here). This opinion doesn’t involve a contract dispute. Instead, what caught my eye is what is, to my mind, a misunderstanding on the part of the judge writing the concurring opinion. Why bother pointing it out? Because it’s … Read More
Here’s the text of an email I just sent someone who attended one of my recent European seminars: I’m pleased that you found the seminar worthwhile. So you’re looking for further training that will allow you to get more comfortable with contracts drafted in English. You also want to understand better the sorts of provisions that are standard in commercial … Read More
I’ve scheduled two new Canada “Drafting Clearer Contracts” public seminars for Osgoode Professional Development: Calgary, October 24, 2013 Toronto, November 6, 2013 I’ll put additional information online as soon as it’s available. And things are looking good for my first-ever OPD seminar in Montreal in early 2014. Cela serait génial!
At one of my recent European seminars I told the participants that I’m not in favor of the approach to document design that says that as soon as you have two distinct thoughts in a contract provision you should enumerate them and tabulate them. (For more about that, see this 2013 post (eighth paragraph) and this 2012 post.) But, said one of … Read More
[Updated May 2, 2013: Well, my readership has proved immune to the attractions of half off ten copies of MSCD. Tough crowd! Anyway, thank you for indulging me in this experiment.] I’m offering up for auction one lot of ten print copies of the third edition of A Manual of Style for Contract Drafting. I’ll be paying all proceeds to … Read More
I’ve updated this site’s page on my in-house seminars to note that I’m now offering a one-hour presentation entitled “The Bad (and Good) News About Contract Language and the Contract Process.” Here’s the description: In addition to his seminars, Ken offers a one-hour presentation on problems with traditional contract language and the traditional contract process and how organizations can address those … Read More
A few days ago a reader asked me about a recommendation he saw online to the effect that it might be a good idea to use a footnote to explain why a negotiated contract provision had been written in a particular way. And another reader just asked me about using footnotes in a contract. Someone in his company had proposed … Read More
In modern discourse, it’s increasingly important not just to be right, but to be seen to be right. There’s no shortage of people offering, online, debatable interpretations of contract-drafting issues. And every few weeks, another questionable analysis is added to the pile. That increases the clamor in the marketplace of ideas, with the result that it’s harder to distinguish good ideas … Read More
Utmost? WTF! Here are some examples of use of utmost in contracts on EDGAR: … provided that the party so affected shall use its best efforts to avoid or remove the cause(s) of non-performance and observance with utmost dispatch. A Seller’s agent or subagent has the following affirmative obligations: (1) To the Seller. A fiduciary duty of utmost care, integrity, honesty, and loyalty in … Read More
