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
Today I received an email from longtime blog reader Elliot Miller inquiring about concedes that. I hadn’t previously encountered that usage, so of course I searched for it on the SEC’s EDGAR system. If you exclude its use in conditional clauses (If Acme concedes that …) and language of discretion (Acme may concede that …), where it plays a supporting … Read More
Here are my latest thoughts on an interesting categories-of-contract-language wrinkle discussed in MSCD 2.155–156: You can express prohibition by means of an exception to language of discretion, but doing so could be a source of confusion, depending on how you do it. Consider the following: Widgetco may sell one or more of the Vehicles except the 1965 Ford Mustang. As a … Read More
I culled the following from a security agreement on EDGAR: … SwissINSO hereby grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to the Secured Party a lien on and security interest in, all of SwissINSO’s right, title and interest in, to and under, all of the property and assets currently owned by or owing to, or hereafter acquired by or … Read More
I thought it time to hoist out of the comments a discussion of obligation versus duty. Here’s what reader AWB said in this comment: By the way, any time is a good time to reconsider your preference of “obligation” (ten letters, four syllables) over “duty” (four letters, two syllables). They’re equally Latinate, but “duty” is easier to chew and has … Read More
Bryan Garner has an article on shall in the current issue of the ABA Journal (go here for the online version). It doesn’t say anything new, and I don’t need to add anything to what I said in this post from September 2011.
I’ve written about granting language several times, most recently in this November 2011 post. I now have another issue for you. Consider the following stripped-down provisions: Acme hereby grants Smith a license to use the Marks. Acme hereby licenses the Marks to Smith.* And consider these provisions: WidgetCo hereby grants to Jones a lease to the Premises.* WidgetCo hereby leases … Read More
In this post last month I proposed yet another category of contract language—language of belief. Here’s a cleaned-up version of my example of language of belief: The parties believe that this agreement complies with the requirements of section 409A of the IRS Code. But consider the follow observation by Glenn West, which comes from our recent exchange (see this post): In … Read More
In this November 2011 blog post I discussed how I had belatedly discovered a new category of contract language—language of intention. For the heck of it, here’s something that I just wrote regarding the murky boundaries of language of intention: If one were strict about it, language of intention would crop up in unexpected places. For example, in the U.S., … Read More
