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
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
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
Every so often someone says to me, in connection with MSCD, “I don’t always agree with you.” My ears prick up when I hear that. It suggests to me three possibilities: The speaker has spotted flaws in my analysis. The speaker misguidedly regards contract drafting as a craft, with the drafter being free to select at will from an array … Read More
If you’ve perused chapter 2 of MSCD (Categories of Contract Language), you’re aware that I have a mania for disciplined use of verbs in contracts. But I haven’t previously had occasion to discuss use of can and cannot; I’ll do so now. The word can is used to express physical or mental ability, as in he can open beer bottles … Read More
