Blog

Defined Terms for the Components of a Transaction

I’ve been urging my Penn Law students to curb their tendency to create more defined terms than a given contract requires. That led to one of my students sending me the following message regarding our final assignment, the Penn Law redrafting project: Dear Professor Adams, I just took a look at your version of assignment 5. It seems to me … Read More

More on Using Words and Numerals to Express Numbers

Most drafters use words and numerals to express numbers—as in no later than thirty (30) days after Acme delivers a Termination Notice. Numerals are easier to read than words but are more prone to typographic errors, so using both affords the immediacy of numerals while providing insurance against a transposed decimal point or an extra or missing digit. Courts are … Read More

Choosing Among Alternative Categories of Contract Language

When in my “Language & Layout” seminars we discuss categories of contract language, I emphasize that in addressing a given issue one sometimes has a choice as to which category of contract language to use, but that one will work better than any other. I encountered an example of that today. Consider the following provisions: Acme may terminate this agreement … Read More

“Shall” Versus “Will” in Business Contracts—An Exchange of Emails

[Updated March 2, 2015: For my most recent take on this subject, see this article.] I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article. … Read More

Thoughts on PLI’s Drafting Program

In a recent email exchange, a corporate partner at one of the big law firms told me that he wasn’t sure how my “Language and Layout” seminar differs from the Practicing Law Institute’s day-long program on contract drafting. So when last week a flyer for that program—”Drafting Corporate Agreements 2009“—arrived in the mail, I made a point of checking it … Read More

Nicknames for Contract Provisions

Thinking about materiality-scrape provisions had me pondering idly what other contract provisions are known by nicknames. Only three came to mind—ipso facto clauses, anti-sandbagging provisions, and “garden leave” clauses. A lame effort by yours truly. There are doubtless plenty other such nicknames out there. I invite you, dear reader, to tell us any you can think of. The only rule is that … Read More

The Structure of M&A Contracts—Materiality-Scrape Provisions

Wearing my “structure of M&A contracts” hat, this week I revisited a relatively recent addition to indemnification provisions in acquisition agreements—the “materiality scrape” provision. (What a charming moniker—it brings to mind scraping muck off the sole of one’s shoe.) In particular, I read a couple of useful articles, one by a team of lawyers at Goodwin Procter (click here for … Read More

Adams ABA-Panel Doubleheader

Later this month I’ll be on two ABA panels on consecutive days. First, I’ll be on the panel for a November 20 ABA-CLE webcast entitled “Getting the Business Deal into the Contract.” It’s an encore performance of a panel discussion held at the ABA’s 2008 annual meeting. The other members of the panel are Tina Stark, executive director of the … Read More

Drafting Guru, Anyone?

With publication of the second edition of A Manual of Style for Contract Drafting, I’ve been taking stock. I roam the land giving public and in-house seminars. I teach at a great law school. And I get to explore and write pioneering stuff about a vital yet problematic activity—contract drafting. I love what I do, and I feel tremendously lucky … Read More

“Asserts”—Revisiting “Represents and Warrants” Once More

Longtime readers of this blog will be aware of my hostility towards the phrase represents and warrants (and representations and warranties). Over the weekend I was reminded that I don’t include in the MSCD discussion (starting at 12.285) a point I make in my seminars. Here it is: The only purpose that Acme represents and warrants serves is to indicate … Read More