Consider this (emphasis added), recovered from the EDGAR tar pits: If … , Ultimus may terminate this Agreement upon 60 days’ prior written notice [to the Trust]. Although that formulation is standard, I suggest it doesn’t make sense. In that case, termination wouldn’t happen when Ultimus—let’s take a moment to appreciate that name—notifies whomever it is. Instead, it would happen 60 … Read More
Well, I guess it’s language of performance’s turn in the spotlight, since this is my third post on the subject today. Below is a sentence from EDGAR that uses language of performance to appoint an agent. It’s following by a version using language of obligation. The Fund hereby appoints the Agent as its “Investor Servicing Agent” on the terms and … Read More
Consider use of the verb pay in the following extract from EDGAR: In consideration for the conveyance of the Assets to Buyer, Buyer hereby pays to Seller consideration (the “Purchase Price”) … You can’t pay someone just by saying so. As linguists would say, pay cannot be used performatively. In other words, pay doesn’t work in language of performance. Way more verbs … Read More
I recommend saying Acme hereby grants the License to Smith, not Acme grants the License to Smith, with hereby omitted. Why? I’ll let The Cambridge Grammar of the English Language 860 n.3 (2002) explain for me: Clauses like I promise to return the key and I order you to leave are ambiguous, having also less salient interpretations in which they are statements … Read More
Reader A. Wright Burke has a nifty turn of phrase. Who can forget his nitcaps™. (“Initial capitals,” guys!) He recently came up with “naked facts.” Nice phrase. But I suggest that the concept it stands for doesn’t work. It’s instructive to consider why that’s the case. A naked fact is a statement of fact that isn’t preceded by a reference … Read More
You might recall that last year in this post I suggested the possibility of using “language of concurrence” if when someone sells something the purchase price is being paid at the time the contract is being signed. Last month I revisited that idea in this post. Well, I just realized there’s a traditional-language equivalent. Here’s an example: In consideration of ten dollars in hand … Read More
Updated October 11, 2015: Gee, I go away for a couple of days and commenters have a party! Here’s where I end up on this: First, hereby purchases and hereby sells are both valid to effect sale of whatever it is. I checked with Chris Kunz, and she confirmed as much. Second, despite suggestions to the contrary in the comments, it doesn’t … Read More
[Updated October 5, 2015: This post has been quarantined, and at some point I’ll quietly take it off life support. My revised version of the sample language got caught up in the issue discussed in this post: purchase is one thing, payment of the purchase price is another, so it doesn’t make sense to say that you buy something by paying … Read More
I recently saw this tweet by @CherylStephens: Contract says "Company has the right to request" when it means "can require." Right? Otherwise, just says they can ask? — CherylStephens.com (@CherylStephens) September 12, 2015 Ah, I said to myself, may request! Categories-of-contract-language issue 24,773! So I popped some penicillin and waded into EDGAR. Here’s a taxonomy of may request. Restrictive Relative Clause … Read More
For some kinds of contracts—mostly where there’s a disparity of bargaining power—some companies prefer using the first person (we, us, our) to refer to themselves and the second person (you, your) to refer to the other guy. Going that route has implications. For one thing, it wouldn’t make sense to use shall in such contracts. I wrote about that way … Read More
