Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here). Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with … Read More
I’d like to revisit something discussed in MSCD—how one states warranties relating to, for example, goods yet to be delivered. Consider the following: Acme warrants that the Units will be free from defects when shipped from Acme’s plant. That’s standard warranty language, with Acme stating “future facts,” to use warranties-doctrine lingo. Well, in terms of semantics, I’m not keen on the notion … Read More
Behold the following: Nothing in this agreement gives either party a license or other right to use the trademarks … If the idea is that neither party is allowed to use the trademarks in the specified manner, say so: Each party shall not use the trademarks … For one, it’s shorter. And second, if you say “Nothing in this agreement gives” … Read More
[Updated December 9, 2014] One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. A case in point is this post, originally published on August 4, 2014. To recap, the issue was whether one of the two following alternatives was preferable to the other: Acme shall not sell the Shares unless … Read More
Every so often an issue arises in a topic that I haven’t had occasion to think about in a while. Here’s an instance of that. Check out the following, caught fresh in the EDGAR lagoon (italics added): Buyer is hereby purchasing from the Sellers, and the Sellers are hereby selling to Buyer, free and clear of all Encumbrances, all of the … Read More
Consider the following, the first expressed positively, the second expressed negatively: We’ll let you into the party only if you’re wearing a red carnation and a top hat. We won’t let you into the party unless you’re wearing a red carnation and a top hat. But it’s unlikely that you’d be admitted to the party if you were wearing only … Read More
Last month I considered in this post the relative merits of shall not … unless and may … only if, the former negative, the latter positive. I ended up opting for the former, at least provisionally. Now consider the following: An amendment to this agreement will be effective only if it is in writing and signed by both parties. An amendment to … Read More
As one of their assignments, last week my students at Notre Dame Law School analyzed the verb structures in the “SOW terms & conditions agreement” that goes with Cisco’s advanced services statement of work (here). Obviously, I had to perform an analysis of my own. One thing that caught my eye was use of nor shall in the following: The receiving party shall at all times … Read More
May can mean might, but I don’t think that’s any reason for me to stop recommending that you use may as the workhorse for language of discretion. Here’s what MSCD 3.160–62 says about may meaning might: In addition to conveying discretion, may can also be used to express that something might come to pass. The result is ambiguity. Consider the … Read More
There’s this: On signing this agreement, the Sponsor is paying Acme $500,000 by check toward the cost of developing the Program. I do believe that what we have here is that most rare creature, a candidate to join the categories of contract language. I’m inclined to call it “language of concurrence.” But the bigger question is whether it serves a useful … Read More
