Front of the Contract

The Roots of All-Capitals Archaisms

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

My Brief Critique of an Article on the Concept of Contract Term

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

On “This Agreement” and Sweating the Small Stuff

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

Down With Unwieldy Contract Titles!

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

Nominal Consideration Under English Law

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

“Good and Valuable Consideration”

The phrase good and valuable consideration is a standard feature of recitals of consideration in business contracts. You know the drill: 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 parties hereto covenant and agree as follows: So … Read More

The U.S. Date Format: Going Rogue

When I think of American exceptionalism, I don’t think of grand political theories. Instead, I think of how the U.S. is one of only five countries that uses the Farenheit scale for everyday applications (the others being the Bahamas, Belize, the Cayman Islands, and Palau). Even more exceptional is the fact that the U.S. is the only country to state … Read More

Using “So” in the Lead-In?

Yesterday I saw this tweet: #30plainwords. 27. Instead of using therefore, chooseso. #IPLAINDAY. Join tweet-up #talkplain2015 Oct 13 9am PT — Kate Whiteside (@keykate) October 9, 2015 Hardly a shocking proposition, but it brought to mind the one place in a contract that features therefore, the lead-in: The parties therefore agree as follows: So why not use so instead: … Read More