Yesterday I spotted the following tweet that @mcfandrew86, research development officer at Queensland University of Technology, Australia, apparently posted while at a contracts workshop: Basic rule of contract drafting? Don't use a USA contract as an example! Oh, and don't copy and paste in haste! #arms2012 — McFandrew (@mcfandrew86) September 19, 2012 Then there was this last week from @IPDraughts, … Read More
Here’s something that I suppose I should have mentioned years ago: to the list of suboptimal ways of imposing an obligation on the subject of the sentence, add promises to. For purposes of language of prohibition, the counterpart is promises not to. Use instead shall and shall not. Although promises to isn’t as conducive to confusion as agrees that, in … Read More
The word consideration features prominently in the traditional recital of consideration. You know: “NOW THEREFORE, in consideration of the premises, …” blah blah blah. The traditional recital of consideration is of course pointless (I revisited it in this 2011 post), but that’s not what this post is about. Instead, reader Chris Lemens brought to my attention the phrase as consideration. … Read More
Here’s my attempt at articulating, for the first time, the interplay of vagueness and imprecision. Excuse the lack of hyperlinks to analysis of the different terms I mention. Vagueness is a function of uncertain borders. It’s nice to be precise, but in some contexts you have to resort to vagueness by using, for example, the term reasonable efforts. But the … Read More
This post includes a list of ways in which indemnification can benefit a party bringing a claim. Here, in a spirit of completeness, is another one, suggested by a reader: Ensure Losses Aren’t Covered by a Provision Excluding Certain Types of Damages. Asking to be indemnified for losses incurred due to nonparty claims constitutes a claim under the contract. That would … Read More
Last month I took the liberty of including in this post a reader’s appreciation of the value of what I do. The forces of inertia are such that, what the heck, I’m going to do it again. A couple of days ago received the following from Ajay Krishnan, a lawyer based in Toronto: Dear Ken, You don’t know me, but … Read More
In this recent post I considered whether there’s any point in providing in a contract a definition of the term gross negligence. And in this other recent post I considered the adjective wanton. But both posts were inadequate, so I offer instead in this post a broader look at use of the terms negligence and gross negligence in contracts. It … Read More
I’m pleased that in spring I’ll be returning to Kuala Lumpur and Bangkok at the request of Marcus Evans to give my two-day seminar “Effective Contract Drafting: Concise Language, Efficient Process.” The dates are 25–26 February (KL) and 28 February–1 March (Bangkok). More details to come. I expect to do additional seminars while I’m in the region. If you’re aware … Read More
I’m planning my 2013 seminar dates, and West LegalEdcenter has proposed that in April I do a “Drafting Clearer Contracts” seminar in Ohio. The cities under consideration are Cincinnati, Cleveland, and Columbus. If you might be interested in attending an Ohio seminar, I’d be pleased if you’d use the poll below to let me know which city you’d prefer. For … Read More
The English case Ener-G Holdings PLC v Philip Hormell (discussed in this post) also had to consider what it means to say that notice can be served by “delivering it personally.” In that context, “personally” could relate to the person doing the delivering. After all, one says, “I delivered it personally,” meaning that the speaker was the one who delivered the … Read More
