This post isn’t intended for drafters so much as judges and litigators. In a recent bankruptcy case, In re IdleAire Technologies Corp., 2009 Bankr. LEXIS 343 (Bankr. D. Del. Feb. 18, 2009), the court had the following to say about “latent ambiguity”: The plain language of an insurance policy, however, can also be ambiguous, even when there is only one … Read More
Yesterday I got a call from a reader inquiring about verb use in my recommended form of introductory clause. I love that kind of inquiry. More specifically, he pointed to the introductory clause in MSCD sample 1. It begins as follows: This asset purchase agreement is dated May 3, 2008, and is between … He wondered whether it would be … Read More
I’ve belatedly updated the testimonials on the MSCD page of this site. To spare you having to click on the link, I’ve copied the testimonials below. I thank all those who were kind enough to provide testimonials. I have a particular soft spot for the one that potential MSCD readers are least likely to pay attention to, namely the one … Read More
In connection with one of my Calgary seminars, someone suggest that my treatment of best efforts doesn’t apply in Canada. I thought I should address that, because if my analysis doesn’t work for Canada, it doesn’t work anywhere. Chapter 7 of MSCD contains my analysis of efforts provisions, and I’ve also done a good number of blog posts on the … Read More
A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you’re likely going to be early or late, to a lesser or greater extent. That’s because any given time of day isn’t a period of time, but simply the … Read More
Drafters use the phrase time is of the essence to indicate that failure to meet a contract deadline constitutes grounds for termination. But as I explain in MSCD 12.394–403 and in this May 2006 blog post, saying Time is of the essence for purposes of this agreement is problematic, in that such provisions suggest that the draconian termination-for-any-tardiness standard applies … Read More
I’m at the tail end of a productive week spent in Calgary. Last Thursday I gave a seminar for Petro-Canada and its outside counsel, Fraser Milner Casgrain. On Friday I gave a lunchtime presentation for the Canadian Bar Association Alberta. And today, I gave a seminar for the law department of Enbridge Pipelines. Based on preliminary feedback, those who attended … Read More
A recent Texas case, XTO Energy, Inc. v. Smith Production, Inc., 2009 WL 442003, No. 14-07-00069-CV (Tex. App. Hous., Feb. 24, 2009), shows why it’s a good idea to be excruciatingly comprehensive when specifying in a contract the procedures to be followed when the parties make important decisions. Appellee Smith was an operator under two joint operating agreements (JOAs) governing … Read More
The current issue of the Canadian periodical The Lawyers Weekly contains an article entitled “Plain Language Movement Gaining Steam.” It’s a useful introduction, although regular readers of this blog won’t be surprised by what it has to say. And it quotes some contract-drafting guy … Incidentally, I explained in this November 2006 post why I refer to “standard English” rather … Read More
Recently I’ve enjoyed reading some thoughtful posts offering different takes on the working life in law—how to make it more meaningful, or at least how to survive. In particular, I’m thinking of Vickie Pynchon’s posts tracking how she picked herself up and dusted herself off after being laid off in 1992; click here for the first in the series. And … Read More
