Categories of Contract Language

Some Observations on a Blog Post About “Shall”

I’ve mostly given up policing what passes for the marketplace of ideas—it’s too chaotic. But occasionally the algorithm tells me I might as well say something about something. So now, I’ll offer my thoughts on this post, entitled Canceling the Word “Shall” in Leases, Contracts and Legal Forms, on the Holland & Knight Retail and Commercial Development and Leasing Blog. … Read More

Revisiting the “Shall” Wars

The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts. … Read More

In Contracts, “Please” Is Not the Magic Word

Thanks to a hot tip from Deep Throat Glenn West, I learned about the Fifth Circuit’s opinion from earlier this year in  Landmark American Insurance Co. V. Lonergan Law Firm, PLLC (here). An insurance company claimed that appellant Lonergan, a lawyer subject to a malpractice claim, had failed to “report” the claim as she was obligated to under her insurance … Read More

Some Dale Carnegie Advice Contract Drafters Shouldn’t Follow

Dale Carnegie, an early-twentieth-century U.S. writer and lecturer on self-improvement, famously said, “Tell the audience what you’re going to say, say it; then tell them what you’ve said.” Whatever the merits of that gem, it doesn’t apply to contracts. In particular, don’t say what you’re going to say, as in this example: This agreement states the terms under which the … Read More

Dual Verb Structures: “Agrees to X and Continue to X”

Late last year I did my first post on dual verb structures. I’ve done five of them, here, here, here, here, and here. Actually, make that six, because I now introduce to you the supremely effed up structure agrees to X and continue to X. I found only a few examples on EDGAR, but enough to confirm to my satisfaction … Read More

Here’s How the “Has a Duty” Test Works

For 15 years I’ve been haranguing people about the has a duty test. I can be relied on to ask a given group, way too many times, What is the first diagnostic test? In my dreams, those in attendance respond in unison, boot-camp style: The has a duty test! Allow me to explain. The foundation of controlled drafting is how … Read More

“Hereby Instructs”

Today’s I offer you another interesting contracts verb structure, hereby instructs. Here are some examples from EDGAR: The Employee hereby instructs the Company to transfer to such Managers Insurance and/or Pension Plan the amount of Employee ’s and the Company’s contribution from the Monthly Salary, as detailed in Annex A. The Collateral Manager hereby instructs the Collection Account Bank, on … Read More

More Throat-Clearing Madness!

The pandemic has aggravated my tendency to lurk on EDGAR, the U.S. Securities and Exchange Commission’s database where public companies file their “material” contracts. Now I dream up the weirdest things I can think of, then I look for them on EDGAR. “Throat-clearing” is when a redundant verb structure is tacked on to the front of a provision. Who can … Read More