Thanks to Dan Schwartz (aka @danielschwartz), I learned of this Connecticut case. It involves an employment agreement between a town and one if its employees. The language at issue included the following: Based upon the annual performance evaluation, and at the [m]ayor’s sole discretion and recommendation, the base salary may be increased on July 1 of each fiscal year, subject … Read More
Today I did a “Drafting Clearer Contracts” seminar for the Utah State Bar. As with last year’s seminar in Boise for the Idaho State Bar (see this blog post), it was sold out. And it appears that a worthwhile time was had by, if not all, then at least those with whom I spoke. One of those in attendance was Mark J. … Read More
Last week I was involved in the following exchange on Twitter with @ClearLanguage and @mrsalzwedel regarding—of course—shall: @KonciseD @500wordlawyer @ClearLanguage: I read many contracts where the lawyer uses shall in 3-6 senses. Perhaps efficiency = just drop it? — Matthew Salzwedel (@mrsalzwedel) May 8, 2014 I replied to Matthew that I’d answer his question on my blog, so here we … Read More
Here’s what MSCD 3.244–45 has to say about “passive-type policies”: Some policies are characterized by adjectives such as exercisable and payable and have a structure that’s analogous to the passive voice. This manual refers to such policies as “passive-type policies.” Passive-type policies have two shortcomings. First, as with passive verb phrases (see 3.11), the agent can be expressed by a by-agent, but in contracts … Read More
Acme has an inventory of widgets. For whatever reason, the following is in a contract between Acme and WidgetCo: It is a condition to Acme’s conducting a public sale of widgets that Acme notify WidgetCo in advance of the date and location of that sale. Now compare that to the following: To dispute a DynaCo invoice, XYZ must submit a … Read More
In contracts, language of declaration is used by parties to declare facts. And as I say in MSCD 3.270, “Language of declaration allows parties not simply to assert facts but to be seen to be asserting them—without the verb, it wouldn’t be clear who is making the assertion.” Language of declaration comes in two flavors, depending on whether the fact … Read More
One of the categories of contract language is language of recommendation. It’s discussed at MSCD 3.332, and I introduced the idea in this 2011 post. Obviously enough, you use it when one party is recommending something to another party: The Company recommends that the Participant consult with his or her personal advisor …. I’ve always though that language of recommendation … Read More
These days I mostly get my inspiration from contracts and from caselaw, but books by others can also be a source of useful ideas. Seeing as I’m in Australia, I just purchased on Kindle the third edition of Modern Legal Drafting: A Guide to Using Clearer Language, by Peter Butt, emeritus professor at the University of Sydney and the doyen of … Read More
It’s routine for one post to beget another. My post on shall not negligently (here) was prompted by the following contract language: Company will not, and will not knowingly or negligently allow any third party to [do various things]. In a comment, David Ziff considered the implications of using just shall not allow, with negligently omitted. I agree with David. On … Read More
While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following: Company will not, and will not knowingly or negligently allow any third party to [do various things]. But does it make sense to impose an obligation on someone not to act negligently? Is that equivalent to imposing an obligation … Read More
