In this July 2006 post I said that although it’s standard to refer to “survival” of representations, it’s unhelpful to do so. I quoted language that I find much clearer. Well, it would seem that both the traditional language and my preferred language were found wanting in a 2007 case applying California law that I saw mentioned in the ABA … Read More
In February, the New York Law Journal published my article about the litigation between Cerberus and United Rentals. If you’re hungry for more on the subject, check out this article in the American Lawyer. I make a brief guest-appearance.
One frustrating aspect of my self-appointed role as freewheeling contract-drafting guy is that I’m not involved, day in and day out, in drafting contracts. As a result, I don’t have occasion to gain hands-on experience with the nifty information-technology tools that are now available to help the drafter. I wrote about a bunch of them in my ACC Docket article … Read More
Victoria Pynchon—she of the Settle It Now Negotiation Blog—asked me the following question: While I was practicing, it was common for the opposition to put signature lines on settlement agreements for the attorneys’ signatures. I always refused to sign these, saying, “I’m not a party to this contract and I don’t think my signature adds anything to it.” Now, on … Read More
It’s been a couple of months since I looked through recent opinions. It’s time for me to get back into the habit of doing so, because all sorts of interesting issues crop up. Consider Moore v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 30480 (N.D. Miss. Mar. 31, 2008). It bears on how you create the defined term Indemnified Party. … Read More
Here’s another issues that cropped up during my Geneva seminars: Which is preferable, change in control or change of control? My instinct was that both usages are equally acceptable, and that was borne out by five minutes of research. Contracts filed on the SEC’s EDGAR system don’t seem to display a marked preferance for one usage over the other. And … Read More
During one of my Geneva seminars this week, someone asked me whether it’s better to say listed/described/stated in schedule X or on schedule X. I’d been asked this question a couple of times previously, and I’d responded that I wasn’t sure that I cared. But on being asked a third time, it dawned on me that no question of usage … Read More
On Friday I’ll be heading for Geneva, where I’ll be giving a series of public seminars from April 21 through April 25. Click here for more information. If you want to explore the language of contracts in the company of a few like-minded people, these seminars would provide an unmatched opportunity.
I often come away from a seminar having learned something new. For example, a participant at my recent Vancouver seminar asked me what I thought of the phrase dated for reference, as used in the introductory clause. I confessed that I hadn’t previously encountered it. After I arrived home, I searched on Lexis for use of the phrase in the … Read More
I don’t include in the introductory clause the address of a party that’s a legal entity. That’s because the introductory clause serves to distinguish a given party from any other person or entity with that name. For a legal entity, that’s accomplished by giving its jurisdiction of organization or its registration number; you don’t also need its address. Party addresses … Read More
