I had always assumed that only consumer contracts use the first and second person, as in Each of us is free to enter into similar agreements with others and You are responsible for any personal property taxes. But recently someone sent me a major company’s form of customer agreement. In that agreement, the company—let’s call it Acme Global Corporation—was called … Read More
My background is in drafting for deals rather drafting commercial agreements. (By “commercial agreement” I mean, vaguely enough, a form agreement relating to the supply of goods, services, or technology to customers.) But in my consulting activities, I’ve recently been dealing exclusively with commercial agreements. Because any given commercial agreement will likely be entered into dozens if not hundreds of … Read More
I had such fun contemplating for the avoidance of doubt that I was inspired to move on to its very close relative, without limiting the generality of the foregoing (and the even clunkier without limitation of the generality of the foregoing). My verdict? That you should almost always be able to use a less ponderous alternative. Drafters use the phrase … Read More
How’s this for a categorical statement: Never use for the avoidance of doubt. Sometimes a drafter will use this phrase in a contract to introduce language that seeks to clarify preceding language, usually by indicating that something either falls within or is excluded from the scope of the preceding language. In this context, for the avoidance of doubt says, in … Read More
I have a particular interest in the real-world implications of indifferent drafting, so I’ve been contemplating doing an occasional series on drafting screw-ups that make the news. I was prompted to inaugurate this series by Bryan Sims, who was kind enough to point out to me this article from today’s issue of the Canadian newspaper the Globe and Mail regarding … Read More
Drafters should be aware of laws that can trump provisions of a given contract. A good example of this is the way the U.S. Bankruptcy Code can render unenforceable contract provisions that restrict assignment of rights under a contract or give a party the right to terminate if the other party files for bankruptcy. To improve my own knowledge, I … Read More
The issues of word choice that I discuss in MSCD are ones that drafters are likely to encounter repeatedly. In your day-to-day drafting, you’ll probably come across many other, quirkier issues. Here’s one I encountered today. I’m currently revising a software license agreement. It includes, in the section dealing with what’s meant to happen when the license terminates, the following … Read More
In MSCD, at 12.20, I say “the need to distinguish between sections, subsections, and enumerated clauses and sub-clauses means that using columns is not an option.” We’ll, it’s time to rethink that. I’ve been experimenting with a two-column version of the MSCD format, and it isn’t half bad. Click here for a PDF of one-page examples of the same text … Read More
My previous post on the contract drafter as copyright violator sidestepped a very pertinent question—under U.S. law, who owns the copyright in a contract that a law firm drafts for its client? Law Firm or Lawyer? This question has two parts. First, as between a law firm and the lawyer who drafts the contract, who owns the copyright? The answer … Read More
When I redraft a contract, part of the task involves coming up with language that is equivalent to, but clearer and more efficient than, what’s already there—I rationalize verb use and defined terms, eliminate redundant synonyms, and so on. These kinds of changes are straightforward enough—it’s the structural changes that require more thought. But sometimes I’ll come across a phrase … Read More
