At the 2008 ABA annual meeting I appeared on a panel with Kevin Kyte, partner at the Montreal office of Stikeman Elliott. Kevin’s topic was things to bear in mind when drafting contracts governed by the law of a civil-law jurisdiction. It’s a topic I haven’t seen addressed in print, so I permit myself to bug Kevin sporadically. Yesterday I … Read More
I received the following cry of despair from a Canadian reader: I’m preparing a partnership agreement and have been given precedent to work with. Using MSCD, I have spent some time trying to rework the precedent’s archaic language to make it more readable. It says, several times, “Each of the Partners severally represents, warrants, covenants and agrees with each other … Read More
I’ve recently seen and heard references to companies offshoring the task of drafting contracts. For example, this article in today’s London Times says that Rio Tinto has hired a team of Indian lawyers “to work for it on tasks such as reviewing documents and drafting contracts.” If that means having your offshore lawyers handle hundreds of equipment-lease deals by revising … Read More
Recently I wanted to find out more about use of expert testimony to resolve contract ambiguity. (Remember, ambiguity arises when a contract provision is capable of expressing two or more inconsistent meanings.) So I consulted Walter R. Lancaster & Damian D. Capozzola, Expert Witnesses in Civil Trials. I learned that “it remains a basis for objection [to expert testimony] that … Read More
It seems as if every couple of months I find out about another company that’s somehow involved in the contract-automation business. Yesterday I learned about Drawloop. It offers general document-automation services, including automation of routine sales contracts, presumably using mail-merge type functionality. That seems like a sensible niche, one that offers high volume without the complications that arise once you introduce … Read More
Yesterday saw the first broadcast, in a “live” session, of part 1 of my new webcast series “Drafting Clearer Contracts.” The topic was the front and back of the contract. Because I had prerecorded the webcast, the broadcast was a zero-stress affair. Consistent with the live format, I was on hand afterwards to reply in writing to questions submitted. As … Read More
I’ve previously written about whether to use stockholder or shareholder; see MSDC 12.336 and this blog post. (I say it doesn’t matter which you use.) Here’s a related issue that’s just as thrilling: should you say shareholders’ agreement, with an apostrophe, or shareholders agreement, without the apostrophe? (Obviously the same debate applies to stockholders’ agreement.) Note that if each agreement is … Read More
In contracts, addresses occur in the notices provision. And if a contract doesn’t include a notices provision, usually I’ll include in the introductory clause the address of any individual that’s a party, so as to distinguish that individual from anyone else with the same name; see MSCD 1.49. But some addresses are more dependable than others. Reader Chris Lemens recently … Read More
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
