Use of there is or there are in a sentence is not only more often than not a sign of clutter: it also allows drafters to play, presumably unwittingly, the game of hide-the-actor. Consider the hot-off-the-presses case of Florida Department of Highway Safety and Motor Vehicles v. National Safety Commission, Inc., which a reader just told me about (PDF copy … Read More
A reader told me about the Ohio Supreme Court’s June 2011 decision in Sunoco, Inc. (R&M) v. Toledo Edison Co. (go here for a PDF copy). The issue was whether Sunoco could use a most-favored-nation provision in its contract with the Toledo Edison Company to require that Toledo Edison extend the term of the contract to match the term of … Read More
[Updated October 31, 2011, to reflect revised pricing.] Fellow blogger Rush Nigut (www.rushonbusiness.com) recently started a company called NotifyWorks to help lawyers improve their client relationships. (A transactional lawyer turning entrepreneurial—what a concept!) I knew that Rush had in mind that NotifyWorks would be relevant to the contract process, so I asked him a few questions. Here’s our exchange: Ken: … Read More
When in a contract you want to specify a fee to be paid, it’s redundant to use the phrase flat fee or fixed fee: The Bank agrees to pay RP Financial a fixed fee of $37,500 for preparation and delivery of the original appraisal report, plus reimbursable expenses. During the Term, DigitalGlobe shall pay Consultant a fixed fee of $10,000 per month for up … Read More
When someone wants to discuss my giving expert testimony in a dispute over the meaning of part of a contract, it’s a safe bet that the confusion over meaning will involve one or other (or both) of the following kinds of ambiguity: Syntactic ambiguity, which arises from uncertainty over what part of a sentence a given phrase modifies, or what … Read More
My thanks go to a Penn Law student who reminded me of the following categories-of-contract-language nuance: Consider this provision: During the Due Diligence Period, Acme may on one or more occasions cause its representatives to inspect and copy any Widget Documents located at Widgetco’s offices, on condition that they do so during Widgetco’s business hours and give Widgetco at least … Read More
For purposes of general writing, it’s best to be wary of using the passive voice. That’s even more the case when it comes to contracts. To quote MSCD 2.17: There are three drawbacks to using the passive voice. First, using the passive voice and including a by-agent unnecessarily adds a couple of extra words. Second, using the passive voice and … Read More
Unsurprisingly, most of Koncision’s confidentiality-agreement template relates to, well, confidentiality. But as with any contract, there’s a fair amount of boilerplate. That makes our template a unique source for state-of-the-art boilerplate: notices provisions, governing-law provisions, forum provisions, arbitration provisions, and so on. So if you subscribe using our upgrade-your-template option (go here [link no longer available] for more on our … Read More
Yesterday I was reminded of a contract-drafting competition for law students. It’s run by the National Academy of Legal Studies and Research in Hyderabad, India, in association with the law firm Ashurst. Go here for some background information, and go here for the fact-pattern and rules. I like the idea of a contract-drafting competition. It would, in a small way, help … Read More
Use of shall in contracts will remain a topic of discussion. Today’s entry is this post on IP Draughts by Mark Anderson. It summarizes the current state of play. And it mentions that I’m in favor of using shall for contract obligations, and only contract obligations. I actually recommend an even narrower use than that—use shall only to impose an … Read More
