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
In the recent opinion of the Delaware U.S. District Court in Racing v. T-Mobile U.S. (here), the following contract language was at issue: VICI grants to [T-Mobile] the right to be the exclusive wireless carrier supplying wireless connectivity for the Porsche, Audi, and VW telematics programs beginning in model year 2011 with such exclusivity continuing throughout the Term of this … Read More
Although it’s standard to refer to contract “rights,” in this November 2012 post on rethinking the “no assignment” provision, I said the following about “rights”: It’s unclear what “rights” refers to. (I don’t use the word “rights” anywhere in MSCD.) I think it refers to discretion granted to a party under an agreement and any remedy that a party has under … Read More
Consider the following: Orbitz may refuse to deliver Shares to the Employee if Employee fails to comply with Employee’s obligations in connection with the Tax Related Items. Refusal is in response to a request. Instead of may refuse, I’d always use that standard component of language of discretion, is not required to. It allows you to address the issue on a more fundamental … Read More
There seems to be no end to the bizarro verb structures that drafters opt for. Today I saw the following in a contract: “Consultant will be expected to perform the Services.” I said to myself, WTF! I promptly went on the SEC’s EDGAR system, where I had no trouble finding instances of will be expected to. It occurs in 289 … Read More
In this November 2011 post I introduced language of intention. It makes sense to use language of intention to articulate those aspects of a contract relationship that are subject to judicial scrutiny, meaning that the parties cannot establish them definitively in the contract. For the heck of it, here’s another example of language of intention, namely the basic version of … Read More
Here’s something that I suppose I should have mentioned years ago: to the list of suboptimal ways of imposing an obligation on the subject of the sentence, add promises to. For purposes of language of prohibition, the counterpart is promises not to. Use instead shall and shall not. Although promises to isn’t as conducive to confusion as agrees that, in … Read More
My friend at Melbourne Law School, Andrew Godwin, let me know about an interesting English case, Ener-g Holdings PLC v Philip Hormell (copy here). For a general overview of the case, go here for a summary by McFarlanes. Me, I just want to focus on the two main issues. This post deals with the first of them. Here’s the relevant language: … Read More
