If often find myself alluding to the “magic words” approach to drafting. Here’s what I mean: You’re using magic words when you don’t clearly articulate in a contract a given concept but instead use legalese to grope at the intended meaning, in the hope that custom, or the courts, will fill in any gaps. Using magic words presents two risks. … Read More
In an exchange of emails this evening, my correspondent inadvertently used “indemnitor” when he meant “indemnitee.” It’s in order to avoid just such confusion that I recommend in MSCD 1.72 that you not use as defined terms for party names any paired defined terms that differ only in their final syllable, such as Mortgagor and Mortgagee. Given that one uses … Read More
As one of the assignments in my Penn Law contract-drafting course, this semester I once again asked my students to redraft part of a contract currently being used by a company. This time, I selected a template master services agreement submitted by a Fortune 500 company in response to this May 2008 post. The process this time around was the same … Read More
It’s generally a bad sign when, barely after it begins, a sentence shifts into a set of enumerated clauses: If (1) A, (2), B, or (3) C, then X. Acme shall (1) A, (2) B, and (3) C. In such sentences, the drafter is forcing the reader to make a connection between each enumerated clause and the stub beginning of … Read More
MSCD 12.258–277 discusses the distinction—or not—between immediately and promptly. Here’s another aspect of immediately—it’s often misused in connection with stuff that happens automatically. Consider the following provision: This agreement will terminate immediately upon Acme’s giving Widgetco notice of termination. I’ve stricken the immediately because it suggests, inappropriately, that a moment of time, however short, passes between notice and termination. Instead, … Read More
After a long absence, I’ll be in London over the holidays, visiting family and giving my daughter a brief introduction to the land where I spent fifteen years before sloping off to law school in the U.S. I had planned on returning to the U.S. early in January, but I find myself discussing with clients the possibility of giving in-house … Read More
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
