A suggestion: Don’t use the word merely in your contracts. It has a dismissive and antique quality (Merely a flesh wound!) that makes it unsuited to contract language. I’d use it only in writing that seeks to persuade. And even then, I’d be careful. Depending on the context, the fix for merely in contracts might be simply to delete it, … Read More
Koncision Contract Automation moved an important step closer to reality today, as I’ve just released a prototype for testing. The prototype is a one-way due-diligence confidentiality agreement; it will be tested by the confidentiality agreement editorial board. (Sorry, I won’t be releasing it for broader testing.) I’ll then adjust the prototype in various ways to fill out the confidentiality-agreement product … Read More
It’s good to be precise. But when the future is sufficiently uncertain that you can’t be precise, vagueness comes in handy. But there’s vague and there’s vague. Consider reasonable. Because reasonableness isn’t determined by objective criteria, determining whether a given act is reasonable requires (1) a potentially messy inquiry into the surrounding circumstances and (2) measuring the findings against one’s … Read More
I’ve been wondering about to the extent permitted by law. Let’s consider the contexts in which it might be used in a contract between Acme and WidgetCo: You can use it in language of discretion, as in To the extent permitted by law, Acme may terminate the Target Employees. If Acme terminates any Target Employees unlawfully, it will have to … Read More
A standard piece of boilerplate is a provision stating that the prevailing party in any dispute is entitled to recover costs. Such a provision might look something like this: Recovery of Expenses. In any adversarial proceedings between the parties arising out of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any … Read More
I expect I could count on the fingers of one hand the times I’ve gone off-message and blogged about something other than contract drafting and the contract process. Add this post to that short list. This evening I drove east on Jericho Turnpike, a few miles from my Long Island home, to see Vickie Pynchon—author, lawyer, mediator, negotiation trainer, and … Read More
Longtime readers of my blogging will know that I’m an unabashed fan of the work of Glenn West, a partner at Weil Gotshal. His articles on extra-contractual liability (click here for a copy) and on consequential damages (click here for a copy) are essential resources. And Glenn usefully chimed in on that burning issue, represents and warrants. (See this September … Read More
In this recent post I first articulated my unease regarding shall cause, and I mentioned it again in yesterday’s post on indemnification. Given that a significant proportion of you think that indemnification smells like week-old fish, and given that for now I have no way to put you at ease on that subject, the shall cause issue isn’t going anywhere. … Read More
[Updated 3:00 p.m. EST, January 10, 2011: In this post, I propose revised indemnification language. I’ll chew over whether still to offer as an option in Koncision’s confidentiality agreement the alternative language I offer below.] [Updated 9:50 a.m. EST January 7, 2011: The question of how the elements of a claim for indemnification relate to the elements of a claim … Read More
In this recent post on indefinitely I considered the best way to express that a given obligation lasts forever. That brought to mind a different, and problematic, use of forever, namely in language of performance. Consider the following examples: The Executive, on behalf of the Executive and the Executive’s heirs, executors and assigns hereby releases and forever discharges the Company … Read More
