[Adjusted 4:30 p.m. EDT, July 28, 2012, to implement the recommendations made by A. Wright Burke in his comment; revised 7:00 a.m. EDT, July 31, 2012, to overhaul the section on indemnify and hold harmless; revised August 13, 2012, to add paragraph “Recover for External Events or Circumstances”.] Over the past four years I’ve considered indemnification in half a dozen … Read More
Consider the phrase reasonable wear and tear, as in “The Grantor shall maintain the Equipment in good working order, reasonable wear and tear excepted.” I know that reasonable wear and tear is standard, but it’s also a bit quaint: Wear is fine, but what’s with tear? Presumably the nifty rhyme has a lot to do with it. (Garner’s Dictionary of … Read More
What’s the difference between seller and vendor used as defined terms for party names? Here’s what Bryan Garner has to say in Garner’s Dictionary of Legal Usage: In specific contexts, however, a differentiation is emerging: in computer contracting, the practice is to use vendor rather than seller almost exclusively. The term vendor is used in two senses: (1) “any member … Read More
I’d be grateful for your thoughts on the following question: What determines whether an organization uses a purchase order (with additional terms on the back or separately) when buying goods or services or instead puts all the terms in a contract?
[Updated July 14, 2015: This topic is revisited in this 2015 post.] I wrote about the phrase sole and exclusive in this 2010 post on AdamsDrafting. Last April Mark Anderson wrote about it in this post on IP Draughts. At the risk of overkill, I’d now like to take another crack at the subject. “Sole” and “Exclusive” in Licensing In … Read More
Today’s New York Law Journal contains my article The Illusion of Quality in Contract Drafting. My co-author is Tim Allen, chief executive officer of Business Integrity, developer of ContractExpress document-assembly software. (Koncision uses ContractExpress.) For a PDF reprint, go here. For the online version, go here, but it “requires premium access.” My articles alternate between substance and polemic. I think … Read More
Release language usually consists of a slurry of redundancy. In this 2009 post on AdamsDrafting I considered a standard component of release language, irrevocably release. Here’s what I said: Once you release something, it’s gone, without any way for you to claw it back. So having a party irrevocably release something does nothing other than add a surplus and potentially confusing … Read More
The words likely and probable both express the degree of probability of something occurring. They’re not vague words. Vagueness is a function of borderline cases—at what point does someone become tall? It follows that vague words such as promptly and material require that you assess circumstances from the perspective of a reasonable person. By contrast, likely and probable aren’t a function of reasonableness. Nevertheless, likely and probable exhibit … Read More
In this 2010 post on AdamsDrafting I considered use of aggressively as an unhelpful alternative to reasonable efforts. Well, in the same vein I now offer you … strive! Three examples: CNH Capital shall strive to respond to credit applications within two (2) weeks following receipt of all requested information and material. During the Employment Period, Executive … (iv) shall perform Executive’s … Read More
Today I saw a contract that referred to itself throughout as “this CRADA.” Besides the fact that “CRADA” (standing for “cooperative research and development agreement”) has to be one of the least appealing acronyms, why bother using anything other than “this agreement”? Assuming that the full reference is used in the title and once in the introductory clause, readers don’t have … Read More
