Today I saw this sentence (emphasis added) from a confidentiality agreement: Recipient shall be liable for any unauthorized disclosure or use of Confidential Information by or related to any party to whom Recipient discloses Confidential Information, as if such disclosure or use were by Recipient itself. It’s relevant to something discussed at yesterday’s in-person Drafting Clearer Contracts presentation (more about … Read More
In 2015 I did this post about the phrase good and valuable consideration. Well, I underestimated how stoopid it is. Here’s an example of a traditional recital of consideration: NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the … Read More
As a companion piece to this blog post from last week about putting the date of the contract in the introductory clause, in this post I’ll explain why it’s not a good idea to use as the date of a contract a date that reflects timing of performance. To capture past performance, drafters sometimes use in the introductory clause a … Read More
Generally, action is better than gestures. But gestures can lead to action, so I’m amenable to gestures. For example, perhaps ten years ago I was surprised to have a training participant suggest that I not use guys when addressing the men and women in the group. At first I wasn’t convinced, but now, no guys. Similarly, in the past few … Read More
Last week an exchange of emails with Alex Hamilton prompted me to rethink an aspect of the date you put in the introductory clause of a contract. That led to my doing this blog post over the weekend, which in turn led to this comment on LinkedIn that caused me to do further rethinking, which led to my badgering @writeclimbrun. … Read More
Behold the following introductory clause. See the emphasized text? It defines a term individually and collectively—a practice I mocked in the preceding post—but it uses one defined term for the individually part and a different singular defined term for the collectively part. THIS FIRST AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of March 19, 2019 (this “Amendment”), … Read More
Behold the following introductory clause: AMENDMENT, dated as of October 10, 2018, to the ISDA Master Agreement , dated as of July 12, 2017 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), between JPMORGAN CHASE BANK, N.A. (“Party A”) and CAMBRIDGE MASTER FUND L.P. (“Party B”). Note the defined terms Party A and Party B. They’re a … Read More
Thanks to that one-man research department, Steven Sholk, I learned of this article on Law360, entitled 3 Contract Drafting Myths Debunked. It’s about TA Operating LLC v. Comdata Inc., C.A. No. 12954-CB (Del. Ch. 11 Sept. 2017) (PDF here). It serves as a reminder that if you regard two contracts as a package deal, with performance under one being conditioned on … Read More
Today Joe Kimble, doyen of the legal-writing community, sent me the following photo of a contract he had been asked to sign. The issue wasn’t the wall-to-wall legalese. Instead, in his email Joe said, “I signed this for a home tour yesterday. Why would visitors be asked to sign when the agreement is between the Lansing Historical Society and the … Read More
In this post I discuss how archaisms such as witnesseth arose more than five hundred years ago. Why do they persist? Because transactions are a precedent-driven part of a conservative profession: when it’s time to do a new transaction, it makes sense to reach for contracts used in other, previous transactions. There’s also an element of incantation involved: the law … Read More
