I’ve been prone to using the phrase contracts professional as a way to refer collectively to (1) lawyers who work with contracts and (2) contract managers. But I’m not keen on the term. When used as a noun, the word professional is slippery. In its narrowest sense, it’s used to refer to those who work in fields that require some sort of certification—lawyers, … Read More
As part of my constant travels over the next three months—dubbed by me Seminarpalooza—I’m going to Indianapolis, to do a public “Drafting Clearer Contracts” seminar on Thursday, 22 September. For more information, go here. For a sample agenda, go here. For some testimonials, go here. Why mention Indianapolis? Why not focus on … Helsinki! Singapore! Sydney! For one thing, going overseas … Read More
Are you familiar with broken-windows theory? Here’s the gist of it from the 1982 article in The Atlantic that introduced the theory: Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods … Read More
The word directly comes in handy if you want to say in a contract that a party is allowed to do something, or is prohibited from doing something, directly or indirectly. Some examples from the Berkeley Pit that is EDGAR: Executive shall not directly or indirectly render any services of a business, commercial, or professional nature to any other person … … Read More
So here I am in South Bend, Indiana, teaching for the third time an “intensive” course in contract drafting at Notre Dame Law School, the aim being to fit a semester-long course into three weeks. Why am I here? Well, because the law school asked me. And given my peripatetic ways, parachuting in to South Bend for a brief stay … Read More
I’m back at Notre Dame Law School, teaching an intensive course in contract drafting—one semester crammed into just under three weeks. As usual, the categories of contract language—my term for how verb structures determine function—is taking a lot of our time. To help my students become familiar with this topic, we looked at some problematic sentences and considered alternatives with more … Read More
The blog post by Peter Mahler that I mention in this post about at its sole discretion offers an example of another, unrelated drafting problem. The contract at issue required the company to exercise its option within 60 days after the later to occur of the termination date and “the final resolution of any disputes relating to such termination.” Here’s what Peter … Read More
At MSCD 3.168–.196 and in this article, I discuss why the phrase at its sole discretion and its variants are pernicious. That’s because the unfettered discretion that it seems to suggest can fall foul of the implied duty of good faith. Peter A. Mahler (@PeterMahlerEsq) of the law firm Farrell Fritz offers in this post on his New York Business Divorce blog … Read More
Last week, something I saw in a contract I was reviewing prompted me to fire off the following tweet: "Acme hereby waives the right to" = "Acme shall not": use language of prohibition, not language of performance? — Ken Adams (@AdamsDrafting) August 6, 2016 As is often the case, it has to do with the categories of contract language. The … Read More
This week I revisited my 2012 post on rethinking the “no assignment” provision (here). It reminded me that there’s a general point buried in that post. Here it is: It’s commonplace for contracts to contain something along the following lines: Neither party may assign this agreement without the consent of the other party. In Negotiating and Drafting Contract Boilerplate (Tina Stark … Read More
