Someone steered me to this post on the California Corporate & Securities Law blog. It’s about a recent California case on the meaning of best efforts. The court held—shock horror probe!—that best efforts is subject to a reasonableness standard, leading my informant to suggest that the court agrees with my views on this subject. I’m delighted to receive tips of … Read More
In case you’re still mulling over my post on using states instead of represents and warrants (here), allow me to try to put in a broader context what makes represents and warrants irrelevant for purposes of statements of fact in a contract. After putting it off for, oh, ten years, we finally had a lawn sprinkler system installed. An important component … Read More
Parts of the Uniform Commercial Code require that text be “conspicuous.” For example, section 2-316(2) states that a disclaimer of the implied warranty of merchantability must be conspicuous. Although section 1-201(10) of the UCC specifies that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color,” the UCC doesn’t say … Read More
[Updated 5 January 2016: Go here for my 2015 article on this topic under U.S. and English law; go here for my shorter 2015 article on this topic under U.S. law.] [Revised 11:00 p.m. EDT, May 23, 2012, to add that you should say “states the following facts.” Further revised 8:30 a.m. EDT, May 24, 2012, to change it to … Read More
An eagle-eyed reader who is aware of my long-standing interest in the phrase represents and warrants told me about a 2008 opinion of the Arizona U.S. District Court, Aspect Systems, Inc. v. Lam Research Corp. (Go here for a PDF copy.) Here’s the bit that the caught my reader’s eye: Neither Aspect nor Lam has proved the absence of a … Read More
Steven Sholk, that bloodhound, let me know about an article in the current issue of the Journal of Legal Education. It’s by Robert C. Illig, associate professor at the University of Oregon School of Law, and it’s entitled A Business Lawyer’s Bibliography: Books Every Dealmaker Should Read. (Go here for a PDF copy.) Here’s its stated purpose: This article briefly surveys … Read More
Koncision’s confidentiality-agreement template is intended for sophisticated users. No surprise there—contracts can get complicated. So any nonlawyer who wants to use Koncision might well benefit from a lawyer’s input. In this 2011 post I describe how a lawyer might help a nonlawyer with the template process. Koncision could facilitate such cooperation by maintaining a list of lawyers willing, without charge, to … Read More
I’ve re-upped at Penn Law: this fall, a scant twenty JD and LLM students will be taking my course in contract drafting. Once again, I plan on closing out the semester with a drafting, or redrafting, project for a not-for-profit organization. The idea is that we’ll work on a contract, or part of a contract, for whichever organization is selected, then … Read More
[Updated 5:30 p.m. EDT, May 15, 2012, to revise what is now the next-to-last bullet point and add a new final bullet point, as well as supplement the closing sentence.] I find myself revisiting a favorite topic: stating in a contract how a nonparty is to act. (That something I explored most recently in this post about shall require.) Consider … Read More
[Revised 8:00 a.m. EDT, May 13, 2012, prompted by Mark Anderson’s comment and a good night’s sleep.] Consider the following, culled from the SEC’s EDGAR system: The Parties believe that the provisions of this Agreement are in compliance with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as presently in effect, if and to … Read More
