In this October 2007 post, I discuss how placement of only in a sentence can affect meaning. Well, here’s another issue relating to use of only—the ambiguity that arises when you use only in language of discretion. Consider the following sentence: Acme may close any one or more Contract Stores for any reason, and in doing so it may consider … Read More
I sporadically find myself discussing the nexus between contract drafting and contract law, or rather the contract law that’s taught in the first year of law school. A reader pointed out to me this post on the Conglomerate Blog, which offers a musical analogy to explain the relationship. Buried deep in the comments to that post is my own analogy. … Read More
During a CLE session at the recent Associate of Corporate Counsel annual meeting, one of the panel members used the phrase termination for convenience. It’s a phrase I don’t encounter too often, so I thought I’d better look into it. The Implications of “Termination for Convenience” A quick review of contracts on the SEC’s EDGAR system shows that the phrase … Read More
Today one of my former Penn Law students sent me the following email: I just thought I’d write you a quick note and let you know how incredibly helpful your class has to been to me over my last 3 months of law practice. I am drafting all the time—largely because the partners I work for are very impressed with … Read More
In my tireless quest to master all things related to materiality, I recently asked myself what the heck material breach means. I suspect that if you were to ask that question to a random sample of lawyers and business people, you’d mostly get a lot of hemming and hawing. By extrapolating from my analyses of material and material adverse change … Read More
Earlier this week I received the following email from a reader: Could you please do a post about your thoughts on enforcing contracts that use faxes or pdf scans as the only proof of the other party’s acceptance? People seem very reluctant to send ink-on-paper originals these days. The Uniform Electronic Transactions Act (adopted in almost every state) seems to … Read More
An abandoned blog can be mildly poignant. Everything is as it was when the proprietor up and left. It’s like encountering the Mary Celeste. This thought came to mind when I rediscovered Corp Law Blog, which Mike O’Sullivan, a partner at the Los Angeles office of Munger, Tolles & Olson, posted to between May 2003 and October 2004. More specifically, … Read More
It’s commonplace for drafters to use the phrase action or proceeding. Consider the following extract from a jurisdiction provision: Any party bringing against another party any legal action or proceeding (including any tort claim) arising out of this agreement may bring that action or proceeding in the United States District Court for the Eastern District of Pennsylvania or in any … Read More
A new document-sharing site, docstoc, has just opened to the public. Its slogan is “Find and share professional documents.” Here’s one of the FAQs: What is docstoc? docstoc is a user generated community for sharing professional documents. Find a vast quantity of high quality legal, business, technology, educational, and creative documents for free. docstoc allows users to upload their documents … Read More
As I was packing up after a recent in-house seminar, one of the participants—I’ll call him Sam—came up to me to discuss a point I had made. I had said that the phrase indemnify and hold harmless is pernicious, in that it invites litigators and judges to find nuances of meaning where most likely none had been intended. (For more … Read More
