Reader Matthew pointed out to me an ambiguity I hadn’t thought of. Here’s the language at issue: If the Escrow Agent receives from the Seller a Counter Notice before 2:00 p.m. on the date that is 20 Business Days after the Escrow Agent received the corresponding Claim Notice, the Claim must be resolved in accordance with section X. Matthew was … Read More
I’ve updated the public seminars page with information about the U.S. “Language and Layout” seminars I’ll be giving with West Legalworks in the first half of 2009. In the next few days I’ll update the West Legalworks banner links with the same information.
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
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
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
[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
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
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
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
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
