When more than one party is making a set of representations, it’s commonplace for drafters to use in the representations lead-in the couplet jointly and severally, as in “The Sellers jointly and severally represent to the Buyer … .” One also sees jointly and severally and its adjectival counterpart, joint and several, used with obligations. For example, I’ve seen it … Read More
In any contract, may can be used to convey two meanings. (I’m not counting the superfluous may discussed in MSCD 3.58.) May primarily serves to convey discretion, as in The indemnified party may at its expense retain separate co-counsel. But may can also be used to convey the possibility of something coming to pass, as in Acme may be subject … Read More
In this post, Rees Morrision of the Law Department Management blog notes how some law firms are helping law departments implement document-assembly initiatives. I’m glad to see that document assembly is gaining ground. But given the questionable quality of mainstream contract drafting at even the biggest law firms, I suspect that such arrangements are susceptible to GIGO.
[Update: For my 2012 take on this topic, see this post.] In an October 2006 post I discussed the terms hold harmless and indemnify. I noted that Black’s Law Dictionary states that the two terms have the same meaning whereas Mellinkoff’s Dictionary of American Legal Usage says that one can also distinguish the two terms—that “hold harmless is understood to … Read More
On April 11–13, the American chapter of the International Association for Contract and Commercial Management (IACCM to its friends) will be holding in New Orleans its “5th Annual Forum on Commitment Management: Shaping Change and Driving Value Through Lean Contracting.” (Click here for more information.) IACCM is an organization geared to the needs of contract-management personnel. As I looked through … Read More
[Go here for my most recent post on this subject, from 2016.] This blog has revisited sporadically topics that I’ve decided aren’t covered adequately in MSCD. Here’s another one—the verb include. Illustrative Versus Restrictive Including and includes have traditionally been used to introduce a nonexhaustive list. Here’s how Black’s Law Dictionary defines include: “To contain as a part of something. … Read More
I’m generally pretty quick about following up on reader leads. But today’s post relates to a reader email from almost three years ago. In this 2002 article and in MSCD 16.36 I discuss the implications of giving a written consent an as of date. Here’s what MSCD says: A consent can, like a contract, be given an as of date, … Read More
A reader passed on to me a “Commercial Contracts Newsflash” that he received from the international law firm Ashurst. It concerns Rhodia International Holdings Ltd. v. Huntsman International LLC, [2007] EWHC 292 (Comm), an English case decided on February 21, 2007, by the Queen’s Bench Division. (Click here for a copy of this case; as for the Newsflash, it doesn’t … Read More
A Manual of Style for Contract Drafting refers only once to the verb acknowledge. Heck, it doesn’t even merit an entry in the index. I’ll now give it the treatment it deserves. Language of Performance, Revisited I have to start by reassessing the categories of contract language. (If you just want the nitty-gritty, you might want to skip to the … Read More
David Munn brought to my attention an interesting case dealing with how to incorporate into an agreement provisions contained in some other document. The Case The case is Affinity Internet, Inc. v. Consolidated Credit Counseling Services, Inc., 920 So. 2d 1286 (Fla. Dist. Ct. App. 2006). (Click here for a copy of the case.) Consolidated and Affinity entered into an … Read More
