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Misapplying Sale-of-Goods Concepts to Services

Selling services is very different from selling stuff, so contracts for one are different from contracts for the other. Yet drafters are prone to deploying in contacts for the sale of services concepts that make sense only for selling goods. One example of that is saying that services are being sold “as-is.” When you sell a car “as-is,” that means … Read More

Keep Separate the Date of the Contract and Timing of Performance

As a companion piece to this blog post from last week about putting the date of the contract in the introductory clause, in this post I’ll explain why it’s not a good idea to use as the date of a contract a date that reflects timing of performance. To capture past performance, drafters sometimes use in the introductory clause a … Read More

If Not “Master Services Agreement,” What?

Generally, action is better than gestures. But gestures can lead to action, so I’m amenable to gestures. For example, perhaps ten years ago I was surprised to have a training participant suggest that I not use guys when addressing the men and women in the group. At first I wasn’t convinced, but now, no guys. Similarly, in the past few … Read More

M&A Drafting: Double Materiality Doesn’t Exist

I’ll now revisit something I last wrote about in 2013: double materiality. Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified by materiality: The Seller’s financial records contain no inaccuracies. The Buyer’s obligation to consummate the transaction contemplated by this agreement is subject to satisfaction of … Read More

How to Put the Date of the Contract in the Introductory Clause

Last week an exchange of emails with Alex Hamilton prompted me to rethink an aspect of the date you put in the introductory clause of a contract. That led to my doing this blog post over the weekend, which in turn led to this comment on LinkedIn that caused me to do further rethinking, which led to my badgering @writeclimbrun. … Read More

M&A Drafting: Here’s a Clearer Way to Modify the Bringdown Condition by MAE

A couple of months ago I did this blog post about the redundant reference-point exception in the bringdown condition. Today we revisit the bringdown condition to consider an issue involving how the bringdown condition is modified by materiality. The bringdown condition allows one side to use inaccuracy in the other side’s statements of fact (traditionally referred to as representations and … Read More

The Case for a Subscription-Based Service Offering Automated Contract Templates

The only way to escape contract dysfunction is to provide those who work with contracts an alternative to the copy-and-paste machine. The simplest and most effective alternative would be a subscription-based service offering automated contract templates. For as long as I’ve been researching contract language, I’ve wanted to create such a service. That’s no accident: I’ve always had in mind … Read More

Using a Time Zone When Stating the Date of the Contract

Check out the screenshot above. By saying what time zone doesn’t apply for determining the date of the contract (New York time), it in effect says that Macau time (I assume) applies. It would have been clearer to say “(Macau time)” after the date of the contract, but that’s a quibble. So, is it a good idea to say which … Read More

“Drafting Clearer Contracts: Masterclass” for Summer Associates

If you’re involved in organizing your firm’s summer program and are wondering what training activities you might offer, you could do worse than sign them up for their own series of my online course Drafting Clearer Contracts: Masterclass. For more about Masterclass, go here; for testimonials, go here. If you’d like to discuss the possibilities, contact me.

“Except to the Extent Prohibited by Law”: Redundant or Not?

[Updated 7:30 a.m. Eastern Time, 25 March 2022] Today in a session of my online course Drafting Clearer Contracts: Masterclass, we found ourselves discussing the phrase except to the extent prohibited by law (and its variants). It’s used to modify obligations. Isn’t it redundant?, someone asked. If you don’t perform the obligation because to do so would be against the … Read More