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
Deciding what label to apply to a particular source of uncertainty in contract language can be challenging. A case in point: In this 2010 post and this 2007 post on AdamsDrafting I discuss disputes regarding whether a provision that refers to something in the singular also encompasses the plural. I discuss that phenomenon further in this March 2012 post and … Read More
Here’s a thrilling question for you: If you attach to a contract a number of documents, each with its own page numbering, do you also apply, either in Word or by means of a hand stamp, consecutive page numbers to the entire set of attachments? Is there any accepted practice? It seems more trouble than it’s worth. If the individual … Read More
As I noted in this 2008 post on AdamsDrafting, everything I do, I do first in Canada. That pattern continues to hold, in that on October 4 I’ll be giving in Toronto, for my longtime partners Osgoode Professional Development, my first public seminar on the structure of M&A contracts. And it’s called … “The Structure of M&A Contracts.” It’s keyed … Read More
