Categories of Contract Language

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

Future Facts? Don’t Use Them

I’ve previously touched on “future facts”—statements regarding circumstances in the future—but I haven’t addressed the topic head-on. I fix that with this post. The Conventional Wisdom It’s easy to find future facts in contracts. What the ABA Model Stock Purchase Agreement says about future facts sums up the conventional wisdom: “Representations are statements of past or existing facts and warranties … Read More

It Doesn’t Make Sense to Impose an Obligation to Comply with an Obligation

Check out the highlighted sentences: Section 12.1 says how Myovant is required to pay invoices. Section 11.2 says Myovant is required to pay a given invoice in accordance with 12.1. In other words, section 11.2 imposes an obligation to comply with an obligation. If it were somehow unclear whether section 12.1 applies to section 11.2, it would be prudent to … Read More