I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget the confusion over a “hereunder”? (See this post). Or over “except as provided below”? (See this post.) Well, I have another treat for you. (Yes, I know, I’m too generous.) The case is Bayerische Landesbank, New … Read More
Via prolific tipster Steven Sholk, I learned of this post, by Nathaniel Grow, on Sports Law Blog about baseball player Alex Rodriguez’s legal maneuvering in response to his being suspended by Major League Baseball for having taken performance-enhancing drugs. Here’s the part that caught my eye (hyperlinks omitted): However, as the arbitration decision reveals, Rodriguez’s suspension was not based on … Read More
Via this post on Legal Writing Prof Blog I learned of a recent opinion of the Second Circuit Court of Appeals that involved an odd instance of confused enumeration in a contract. The case is Karmely v. Wertheimer (here). It’s discussed in this post on allgov.com. The facts are way too involved for me to get into, but here’s the … Read More
Cousin Joshua Stein sent me a copy of an article in the May/June 2012 issue of Probate & Property. It’s by Mark A. Senn, and it’s entitled Writing Good, Legal Sense and More or Less. (Go here for a PDF copy.) As you can tell from the title, it’s a little offbeat, but it contains a couple of tidbits that … Read More
In the course of revising a draft contract, I encountered the following; Upon occurrence of a Change in Law or a Force Majeure Event that adversely affects the Seller’s performance under this agreement, the Buyer and the Seller shall negotiate in good faith whether to issue a change order addressing the effect of those circumstances and the terms of any … Read More
A latecomer to the MSCD family of ambiguity is antecedent ambiguity—uncertainty over what the antecedent is of a given element. But it’s certainly making up for lost time. Today, thanks to that relentless source of leads known as Steven H. Sholk, I’m able to offer you an instance of antecedent ambiguity from the hot-off-the-presses opinion of the Delaware Court of … Read More
Here’s what MSCD 13.761–62 has to say about willful and willfully: As it’s usually used in contracts, the word willful, as in willful misconduct, is not only vague but also ambiguous. It means intentional,” but drafters usually don’t make it clear whether the focus is on the party’s action or on the consequences of the party’s action—it’s possible to act intentionally without intending to … Read More
Joshua Stein (I mentioned him today’s other post) recently asked me about an instance of contract ambiguity. Here’s how he referred to it in a recent email: Here’s an example of the usage I commented on: “If Member A fails to contribute the entire Mandatory Capital Contribution, then Member B shall have the following rights and remedies.” What happens if … Read More
The serial comma is the comma used immediately before the and or or preceding the final item in a list of three or more items. I wrote about the serial comma in this 2010 post, but I revisit it now because something caught my eye in Garner’s Modern American Usage. Here’s what it says on page 676: Whether to include the serial comma has sparked … Read More
Via this post by Ray Ward I learned of the recent opinion of the Second Circuit Court of Appeals in AIG v. Bank of America (PDF copy here). In the opinion, the court states that whether a modifying phrase following a list of nouns or phrases modifies each item on the entire list, or only the last item, depends on whether … Read More
