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
I noted with interest Neal Goldfarb’s recent post on LAWnLinguistics about an amicus brief that he filed with the U.S. Supreme Court. His brief concerns the word because, and here’s the gist of the issue addressed: In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the … Read More
I’ve just left Hamburg after a three-day visit. Some thoughts: I held public seminars on Monday and Tuesday at the offices of ECE Projektmanagement, the shopping-center developer. My host was the exceedingly gracious Joachim Kämpf, of ECE’s legal department. He’s a veteran of one of my 2012 Geneva seminars. Last Sunday, Joachim gave me a walking tour of downtown Hamburg. As … Read More
You’ve been asked by Acme to draft an employment agreement for Jane Doe, Acme’s new head of sales. As part of his muttered instructions to you, Roger Roe, Acme’s general counsel, says, “Oh, and Jane should work out of our Budapest office a couple of months a year.” It’s a simple idea, but some issues spring to mind. Allow me … Read More
You see confirms used to introduce statements of fact in a contract. Here are two examples from EDGAR: Each Loan Party (i) confirms that prior to, as of, during and following the funding of the Commitment, each Loan Party was not, and continues not to be, “insolvent” as that term is defined in Section 101(32) of the United States Bankruptcy … Read More
I was recently reminded of Exemplify, “a new breed of research tool for determining market standard language and terms in transactional law practice.” The best introduction appears to be this post by David Hobbie, aka @KMHobbie, on his Caselines blog. Here’s how David describes Exemplify: It is a browser-based clause reference and creation tool that compares clauses you provide with clustered iterations … Read More
I recently saw the following in a book: The words “exclusion” and “disclaimer” are sometimes used interchangeably in warranty provisions, but an important legal distinction exists between them. The word “exclusion” or “excluded” used with respect to implied warranties means that those warranties implied by law are denied entry or admission into the agreement. In other words, if implied warranties … Read More
MSCD 17.16 deals with the phrase to the extent that. It makes the simple point that although to the extent that is appropriate when the degree to which a provision applies depends on some variable, drafters often use to the extent that when if would be more appropriate. Here are three examples: To the extent that [read If] an Award is intended … Read More
