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Williams-Sonoma Stores, Inc. v. DDK/WE Hospitality Partners, LLC: With Contract Verb Structures, One Misstep Can Lead to Disaster

1 February 202024 January 2020 by Ken Adams

From this Reed & Smith analysis I learned of a dispute before the Delaware Chancery Court, Williams-Sonoma Stores, Inc. v. DDK/WE Hospitality Partners, LLC. It demonstrates that with contract verb structures, you can be right, but not right enough. I’ve thought long and hard about the issues underlying this dispute, so let me walk you through it. The deliberations in … Read More

It’s Meaningless. Leave It In or Take It Out?

22 January 2020 by Ken Adams

Today @solirvine tweeted this in my direction: Related: in your extensive corpus, have you ever addressed the dynamic of “it's meaningless/unimportant, so just leave it in” versus “it's meaningless/unimportant, so let's take it out”? That’s a conversation I have at least once per transaction. — Sol Irvine (@solirvine) January 22, 2020 Absent other considerations, you take out that which is … Read More

“Not Subject to a Reasonableness Standard”

14 January 2020 by Ken Adams

Today I saw another way to make it clear that you want a party to waive the implied duty of good faith: Shipper, at its sole discretion and not subject to a reasonableness standard, may determine whether the goods may be salvaged, and if salvageable, the value of such salvage. For reasons I explain in MSCD and in this 2011 … Read More

How to Get a “A Manual of Style for Contract Drafting” on Your Kindle

14 January 2020 by Ken Adams

Amazon used to sell a Kindle version of A Manual of Style for Contract Drafting, but it doesn’t anymore. (Something to do with Kindle versions being vulnerable to piracy.) But you can still get MSCD on Kindle, by buying the ebook version sold by the ABA here. It’s a MOBI file, so you can transfer it to your Kindle using … Read More

“Agrees With”

13 January 2020 by Ken Adams

More often than you’d expect, I’m made to feel as if it was just yesterday that I started exploring contract language, not 20-plus years ago. Today’s example of that is agrees with. It’s basic verb structure, but one I’d never thought about until I was today years old. Here are some examples: Seller hereby covenants and agrees with Buyer that … Read More

Don’t Use “Both … And” As a Linking Expression

3 December 20211 January 2020 by Ken Adams

In various ways, the word both comes in handy in contracts. It’s used to express universal quantification in contracts with two parties: No amendment to this Agreement shall be valid unless made in writing and executed by both parties hereto. And you can use both to make it clear whether you’re referring to one or both of a group of … Read More

Yet Another Dual Verb Structure: “Has Granted and Hereby Grants” (Featuring Lord Byron)

23 December 201922 December 2019 by Ken Adams

Friends, you’re in for a treat. In this post a couple of days ago, I considered the dual verb structure shall grant and hereby grants, with my IP sensei Ned Barlas guest starring. The next day Ned slipped me the image below, courtesy of Gary Dyer, professor of English at Cleveland State University: It’s a screenshot of the text of … Read More

My New Article “Common-Law Drafting in Civil-Law Jurisdiction”

20 December 2019 by Ken Adams

My article Common-Law Drafting in Civil-Law Jurisdictions has been published by Business Law Today. Go here. There’s not much of a back story. It’s a topic that has long been on my mind. I did it as an article instead of a blog post for the usual reason: I thought it would reach a more diverse group. How did Jan … Read More

Dual Verb Structures: “Shall Grant and Hereby Grants”

20 December 2019 by Ken Adams

In this post a couple of weeks ago, I belatedly introduced the topic of dual verb structures. Here’s another dual verb structure: shall grant/assign and hereby grants/assigns (and variants). It appears in provisions relating to intellectual property: Upon the completion of such transfer, Xenon shall, and hereby does, assign to Neurocrine all such Regulatory Materials … Effective on the Collaboration … Read More

What (If Anything) Does It Mean to Have a Court Cite My Work?

21 December 201919 December 2019 by Ken Adams

An anonymous informant—oh what the heck, it was Glenn West—told me that in Channel MedSystems, Inc. v. Boston Scientific Corporation (here), an opinion issued just yesterday by the Delaware Court of Chancery, Chancellor Bouchard cites A Manual of Style for Contract Drafting. More specifically, here’s footnote 236: The parties frame their arguments in terms of “breaches” of representations. The court … Read More

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