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
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
