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
Tired of the moral degeneracy on prolific display in civic life in the United States? Then I invite you to take refuge in old contracts. Really old contracts. The urge to flaunt in contracts, in all capitals, the archaisms witnesseth, whereas, now therefore, and in witness whereof goes back a long way. That’s why they’re called archaisms! But I wanted … Read More
I noticed this article on JD Supra. It’s by two lawyers at the law firm Morgan Lewis, and it’s about the concept of “term” in contracts. I have a different take on some aspects of it, so I offer to the gods of the marketplace of ideas my thoughts on three extracts. First Extract The first issue in establishing the start … Read More
Via this post on the Delaware Corporate & Commercial Litigation Blog, I learned about a recent opinion of the Delaware Court of Chancery that’s relevant to how one goes about making the benefits of a contract available to members of a corporate group. Here’s what MSCD 2.55–.56 has to say about that: It’s commonplace that a member of a group of … Read More
You’re a client. I give you my redraft of one of your templates. We discuss my version. During those discussions, you ask that I restore the capital A to this agreement. Here’s what MSCD 2.110–.110 says about that: It’s common practice to create in the introductory clause the defined term this Agreement. … But this defined term is unnecessary: the definite article this in … Read More
Yesterday I encountered a contract that had this title: LICENSE, SUPPLY, MARKETING, AND DISTRIBUTION AGREEMENT I find such titles annoying. Imagine having to say, for example, “Did you receive the revised license, supply, marketing, and distribution agreement”? Inevitably you’d end up calling it something else. So give it a different title. You could give it a broader conceptual title. I … Read More
At one of my Geneva seminars this week, a participant told me that Czech law says you have to include certain information in the introductory clause. At my request, she followed up with a colleague, who told her the following: This is stipulated under Sec. 435 of the Czech Civil Code(act no. 89/2012 Coll.). Please see below: (1) Every entrepreneur … Read More
My recent article debunking the recital of consideration (here) explains the terms “nominal consideration” and “sham consideration” (footnotes omitted): Such a recital of consideration might seek to express what the parties have actually bargained for. If instead what is being offered wasn’t bargained for as part of an exchange, it’s a pretense. In that case, the recital is said to provide for “nominal” consideration, … Read More
