Can astute contract drafting can forestall all contract disputes? No, it cannot. Most contract disputes, sure. But not all. For example, vagueness is an essential tool for the contract drafter, as often the future is too uncertain to allow you to be precise. But being vague leaves room for future dispute. And often parties rationally elect to punt on a … Read More
I’ve recently become acquainted with a specialized form of contract language—architectural specifications, which are attached to construction contracts and define the requirements for products, materials, and workmanship on which the contract is based and requirements for project administration and performance. My entrée to this field was Andrew Wilson, whose business, AWC West, prepares custom-tailored architectural specifications for leading design firms. … Read More
This Mace & Jones “Education Update” alerted me to the recent English case of KG Bominflot Bunkergesellschaft fur Mineralole MBH & Co KG v Petroplus Marketing AG (2009). Here’s the gist of it: The buyers purchased from the sellers fuel oil that tested OK before shipping but was found to be unsatisfactory on arrival. The buyers claimed, among other things, … Read More
Each of my webcasts—or rather the first five, solo webcasts—consists of a narrated and annotated PowerPoint presentation. That sounds simple enough, but it’s not the norm in the webcast world. Webcasts for the most part consist of phoned-in audio or talking-head video. If there’s a PowerPoint presentation, the audience is invited to view it on-screen or print it out, then … Read More
In contracts and elsewhere, it’s standard to refer to remediation of environmental contamination. It’s also standard to use the verb remediate to refer to the act of remediation. Garner’s Modern American Usage isn’t fond of remediate: remediate, a back-formation from remediation, is either a needless variant of remedy or a piece of gobbledygook. E.g.: “The evidence suggested that there was … Read More
For the heck of it, every so often I search “contract drafting” on Twitter. A few times I’ve been pleasantly surprised to spot a mention of my book. Once someone who evidently was then in one of my seminars tweeted that the seminar wasn’t as much fun as her dinner with an old friend the previous evening. No surprise there—I … Read More
Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.) The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas Court of Appeals, Third District. … Read More
In an item posted today on the (new) legal writer, Ray Ward says the following: Right now I’m reading a long list of definitions in a bankruptcy plan of reorganization, and I just came across this one: “‘SpiritBank’ means SpiritBank.” As definitions go, that’s pretty lame. I’m sure you, dear reader, have seen other examples of definitions that are self-evident, … Read More
[Updated June 4, 2009] I’m pleased to announce that starting June 11, I’ll be offering through West LegalEdcenter a series of seven video webcasts entitled “Drafting Clearer Contracts.” Each webcast will be an hour long. They’ll be rolled out one by one through the second half of July. Five of the webcasts will explore topics discussed in my book A … Read More
How come one drafts a contact but writes a letter? The verb draft has a number of possible meanings, but here’s what the Oxford English Dictionary—the bound version, not the online version—gives as the one definition relating to preparing documents: “To make a draft or rough copy of (a document); to draw up in preliminary form, which may be afterwards perfected.” … Read More
