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
If I argue that a particular contract usage can create confusion, it’s nice when I can point to a court opinion that inadvertently confirms as much. So I was delighted when cousin Joshua Stein sent my way one such opinion, 383 Madison LLC v. The Bear Stearns Companies, Inc., a 2008 New York Supreme Court slip opinion (here). It involves … Read More
[Update: For my definitive take on this subject, see my article Eliminating the Phrase Represents and Warrants from Contracts, 16 Tennessee Journal of Business Law 203 (2015).] Yes, I know that I’m getting tiresome, they way I harp on about represents and warrants, like a dog worrying a bone. But I have a new element to add to my analysis. At … Read More
Today @KentPitman shared the following thought with me: I used to do programming language standardization both nationally and internationally. I noticed some German speakers had a particular attitude (I’d almost say phobia) around the use of the word “will” as a compulsion. They never explained it and seemed to think it was obvious, so I’m not certain, but I eventually came … Read More
Episode 5 of the third season of the U.S. TV show “Suits,” set in a corporate New-York-but-actually-Toronto law firm, features the following exchange between the character Louis Litt, a goofy transactional partner (played by Rick Hoffman), and an associate by the name Simon, after Louis thrusts in Simon’s face an unspecified written assignment that Simon had submitted to Louis: Louis: … Read More
A couple weeks ago the following tweet was sent my way by @UtterlyMacabre: Many IT Ks have an “assumptions” section that functions like a disclaimer. What category of contract language would you call this? Shortly thereafter, @UtterlyMacabre disappeared from the Twitterverse. Too bad, because I thought that was a clever question. Before disappearing, @UtterlyMacabre steered me to two statements of … Read More
[Updated August 9, 2013: I bow to the wisdom of the commentariat! “Acme shall purchase” it is.] Acme and WidgetCo enter into a contract providing for Acme’s purchase of 1,000 widgets. WidgetCo delivers the widgets to Acme, along with an invoice. Acme pays the invoice. In that scenario, when does Acme purchase the widgets? I propose having the contract say, … Read More
Here are three instances, from EDGAR, of use of the phrase to the best of its [or his, her, or their] ability: The Company hereby engages the Consultant, and the Consultant hereby agrees to serve the Company to the best of his ability to provide financial advisory services to the Company during the Term (as defined below) as and when … Read More
While trawling the far reaches of the Netflix galaxy, I encountered that fixture of the Western canon, Star Trek II: The Wrath of Khan. I leave it to others to explore the glories of this oeuvre. What caught my attention is what happens at 54:00. Spock’s protege Saavik (below) reminds Admiral Kirk of General Order 15: No flag officer shall … Read More
You see confirms used to introduce statements of fact in a contract. Here are two examples from EDGAR: Each Loan Party (i) confirms that prior to, as of, during and following the funding of the Commitment, each Loan Party was not, and continues not to be, “insolvent” as that term is defined in Section 101(32) of the United States Bankruptcy … Read More
