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
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
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
Yesterday I saw this tweet: #30plainwords. 27. Instead of using therefore, chooseso. #IPLAINDAY. http://t.co/IzOAfqHk7c 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
Note use of hereby enter into in the following Pleistocene-era lead-in: NOW THEREFORE, the parties hereby enter into this Agreement to set forth their mutual promises and understandings, and mutually acknowledge the receipt and sufficiency of valuable consideration in addition to the mutual promises, conditions and understandings set forth below. And note the same in the following concluding clause: IN … Read More
I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by … Read More
At one of my recent Toronto seminars, a participant mentioned something about how a trust cannot enter into a contract. So I followed up by asking Amy Morris Hess about this. She teaches at the University of Tennessee College of Law and is a prominent authority on trusts and estates. (She’s the successor author of the leading treatise in trust and … Read More
The party information you include in the introductory clause should serve to distinguish that party from anyone else bearing that name. But I’m acutely aware that what information you include can depend on the jurisdiction. This Tuesday, at my Tokyo “Drafting Clearer Contracts” seminar, I heard of another instance of that from Noboru Muranaka, a member of the legal staff … Read More
