OK, let’s go back to basics. I noticed this passage (footnotes omitted) in the textbook Stephen L. Sepinuck & John F. Hilson, Transactional Skills: How to Structure and Document a Deal 15 (3d ed. 2022): Notice that the discussion above refers to the written document as an “agreement,” not as a “contract.” While you might encounter documents labeled as a … Read More
The image above consists of the introductory clause from a form of merger agreement I encountered online. It’s interesting in two respects. First, it doesn’t say “This Agreement and Plan of Merger is dated … and is between”. Instead, by saying “This is an Agreement and Plan of Merger”, it puts the verb up front. That’s unhelpful, because it has … Read More
I’ve explained elsewhere that it’s inane to use an initial capital A in a contract’s references to that contract (as in this Agreement). Go here for my December 2025 post revisiting this issue. I’ve been aware for a while that the urge to inflict an unnecessary initial capital on stuff that’s … IMPORTANT occurs outside of contracts. Namely, law-review articles … Read More
If a contract usage has been around long enough and appears in enough contracts, you’ll find people to defend it, no matter how archaic or otherwise nonsensical it is. A case in point: yesterday Ryan McCarl did this LinkedIn post about the word witnesseth, calling it a “meaningless incantation.” That prompted one reader to say this (in two comments I’ve … Read More
Last week, Kevin Miller, LegalSifter’s CEO, used Adams Contracts’ confidentiality agreement template. In the process, he suggested that I bold the title. When Kevin shared his opinion, I realized I’ve never explained why I don’t bold the title, and no one had ever commented on that preference. So around 25 years into my grand adventure, allow me to articulate to … Read More
Recently, noted swashbuckler and longtime comrade-in-arms Alex Hamilton issued me a challenge: Why not give a contract just an “effective date” without worrying about whether effective date refers to the date of the contract or timing of performance? Confusion In A Manual of Style for Contract Drafting, I say you should distinguish between the two concepts. In particular, don’t give … Read More
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
