[Revised 2:00 p.m. Sept. 11 to reflect comment by randomjohn] It’s commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. My first instinct was to say that is advisable and is redundant. But responding to my call for input, reader randomjohn pointed out that in a number of provisions, … Read More
Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger agreement for Disney’s acquisition of Marvel. I’ve noted some big-picture comments in bracketed italics; I’ll spare you my many micro-level objections. RECITALS WHEREAS, the parties intend that, subject to the terms and conditions hereinafter set forth … Read More
Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses the concept in the negative. … Read More
I noticed that a third edition of Garner’s Modern American Usage has been published. I’ll be purchasing a copy, as GMAU has been the first thing I turn to when looking for guidance on general English usage. Would GMAU be of any use to contract drafters? The language of contracts is limited and stylized—it’s analogous to computer code. But once you’ve … Read More
I was pleased to receive the other day the following wry email: You’ve inspired me since your presentation to our firm back in May. I used to be content with my drafting before I met you, but I now live in constant internal turmoil. My correspondent’s state of mind comes as no surprise. To master contract language, first you have … Read More
[Update October 18, 2009: This post has been supplanted by this new post. I’ll be deleting this post in the next few days.] [Revised 12:45 p.m. EDT to mention, at the end of this post, a relevant May 2009 blog post.] In my post on the AAA standard arbitration clause, I reiterated my doubts about the relating to part of … Read More
While at a social event in Saratoga recently, I had the pleasure of meeting Jerry Kaplan, senior counsel in McDermott Will & Emery’s Chicago office. Ever the imaginative conversationalist, I turned the topic to—what else?—contract drafting. At some point in our conversation Jerry wondered whether contracts wouldn’t be more efficient if drafters were able to refer to a standard set of … Read More
[Updated 16 September 2024: Go here for my New York Law Journal article based on this post. It’s different, and better! And I’ve decided that the consenting language in the NYLJ article is redundant, for reasons explained in this 2021 blog post.] [Revised Aug. 30 7:20 p.m. EDT to reflect comments by Mark and Richard; revised further Oct. 18 with respect to “arising … Read More
No one has ever mentioned to me MSCD chapter 13 (Numbers and Formulas) or asked me any questions about it, so evidently the subject isn’t high on anyone’s list of concerns. But I have a soft spot for that chapter anyway—it discusses the fiendishly subtle forms of ambiguity that can arise in expressing formulas in prose and mathematical equations, and … Read More
[Updated 7 February 2021] A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material contracts. … Read More
