Earlier this week I saw the following notice on the website of The Australian (emphasis added): GLOBAL firm Jones Day has poached Tony Wassaf from Allens Arthur Robinson and appointed him partner in the firm’s Sydney office. The energy and resources specialist has more than 25 years experience in the sector and said he was keen to work for a firm … Read More
My book The Structure of M&A Contracts will be published in two or three weeks. I’m currently torturing West with comments on the page proofs. The final bit of text that I have to prepare is the copyright notice. Here’s what it would look like if I were to base it on West’s standard copyright notice: Copyright © 2010 Kenneth … Read More
I have yet to write a review of a book on contract drafting, and I don’t expect I ever will. Any such review would inevitably be less than a full-throated endorsement. If the author is a friend, they would be disappointed; if the author isn’t a friend, they would likely be more than disappointed; and readers of the review might suspect … Read More
Longtime reader Jim Brashear, now general counsel of Zix Corporation, shared with me a series of exchanges he engaged in regarding locking, and unlocking, Word draft of contracts; I’ve copied them below. This isn’t an issue I have any experience with, as I no longer do deals, but the idea of locking Word documents strikes me as beyond pointless: It can … Read More
Recently in my contract-drafting course at Penn Law I drilled my students in the categories of contract language. (I suggest that understanding categories of contract language is essential to controlled drafting. The topic is analyzed exhaustively in MSCD chapter 2, and you can get a sense of it by looking at posts on this blog in the “Categories of Contract … Read More
That one-man legal-news phenom Steven Sholk pointed me to this story on Law360.com. (Subscription required, or free trial.) It describes how in a petition filed on September 25, American Home Assurance Co. asked the U.S. Supreme Court to define the scope of the phrase arising out of in arbitration clauses. This represents another installment in American Home’s long-running contract dispute … Read More
Contract language differs from narrative, expository, and persuasive prose. When the writer needs to tell a story, explain, or convince, one block of text picks up where the previous one left off. The reader is taken on a trip—jumping on board with the first sentence, hopping off at the end. By contrast, a contract is made up of a set … Read More
Lexical ambiguity arises when the context is insufficient to allow readers to determine the sense of a word that has more than one meaning. You’d think that to avoid lexical ambiguity, all that a drafter has to do is ensure that reasonable readers couldn’t find alternative meanings in a given word. But for two reasons, that’s not enough. For one … Read More
In a contract he drafted for an assignment, one of my Penn Law students used the word aggressively. I immediately turned to EDGAR, where I found 106 “material contracts” filed in the past year that contain aggressive or aggressively. Here’s an example (emphasis added): Distributor shall aggressively distribute and encourage the utilization of merchandising aids and promotional materials provided at … Read More
In this post on his Contract Analysis and Contract Standards blog, Kingsley Martin notes that empirical analysis of contracts allows you to determine what they actually say as opposed to what you think they say. That makes sense, but it wasn’t what caught my eye. Instead, I noted this table, which is from Stewart J. Schwab & Randall S. Thomas, … Read More
