Categories of Contract Language

“States”: It’s Here, It’s Clear, Get Used to It

Last week, during a session of my online course Drafting Clearer Contracts: Masterclass, out of the blue I saw this in the chat window: I started using “states” and found nobody minds. That’s one way real change happens—when no one notices. I followed up with Julianne, and here’s what she said: I had often wondered why drafters use difficult or … Read More

Dual Verb Structures: “Is and Will Be”

You lucky people, here’s another in my sporadic posts on dual verb structures! This time, we have under the spotlight is and will [or shall] be. As with verb structures generally, you can do better than is and will be. Awkward Grouping One explanation for use of is and will be is that the drafter structured things awkwardly. Here’s an … Read More

Revisiting Conditional Clause Verb Structures

It’s time for me to revisit what verb tense to use in a conditional clause. It’s OK, no need to thank me! The following examples fall into two groups, those that relate to a moment in time and those that relate to a period of time. (In the examples, the conditional clause is the part beginning with If; the matrix … Read More

Language of Policy as a Vehicle for Obfuscation

OK, it’s categories-of-contract-language time again! More specifically, the topic is language of policy, which states rules for how the contract works. Language of policy relates to stuff that happens automatically, as in This agreement is governed by German law. One shortcoming in language of policy is when you use structures analogous to the passive voice, as in Rent is payable … Read More

Exploring Further “Is Not Prohibited From”

This is a little subtle. Bear with me. In this 2017 post, I consider whether it’s OK to use in a contract, unadorned, the phrase is not prohibited from, as in Acme is not prohibited from selling Widgets to Uzbekistan. The vigorous discussion in the comments to that post considers whether you should make it clear that is not prohibited … Read More

Dual Verb Structures: “Has No Authority To and Shall Not”

One encounters the phrase has no authority to and shall not in the context of agency: The Contractor has no authority to, and shall not, act as agent for or on behalf of Client or represent or bind it in any manner. Consultant understands and recognizes that he is not an agent of the Company and has no authority to … Read More

Counterparts: An Example of Categories-of-Contract-Language Dysfunction

Counterparts provisions are a mess. For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that. And whatever counterparts are, the issue … Read More

Pelopidas, LLC v. Keller: An Opinion Showing How Courts and Litigators Might Use “A Manual of Style for Contract Drafting”

Yesterday I learned of an opinion—hot off the presses—of the Missouri Court of Appeals, Eastern District, Division One, by Judge Kelly C. Broniec. The case is Pelopidas, LLC v. Keller, No. ED 109395, 2021 WL 3501988 (Mo. Ct. App. 10 Aug. 2021) (PDF here). This opinion concerns Keller’s appeal of a lower court decision interpreting the following sentence from a … Read More