I received the following email from a new U.S.-trained lawyer working outside the U.S. Hi there, I’m a new lawyer starting my first real legal job as in-house counsel for a new legal department in a foreign company. Much of the work I’m doing involves taking over and reviewing a broad range of contracts for projects or deals already underway. Some of these … Read More
Over the past couple of days I’ve been dipping into the new book co-authored by Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts. My interest is drafting contracts, not interpreting them. But to stay out of trouble when drafting contracts, it helps to have a decent grasp of how judges ascertain the meaning of contract language. So … Read More
Bryan Garner has an article on shall in the current issue of the ABA Journal (go here for the online version). It doesn’t say anything new, and I don’t need to add anything to what I said in this post from September 2011.
[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
