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
Earlier this week I received the following message and photo from Karen Belair, of Union Pacific Railroad’s law department: I just wanted follow up and let you know what an indelible impression you left on our department since the Drafting Clearer Contracts seminar at Union Pacific last fall. If nothing else, you have made many of us stop and think … Read More
I thought that after my recent post on using states instead of represents and warrants (here) I’d feel at peace. But it was not to be. Instead, I felt a yearning, that something was missing. And I knew what I had to do. I set off on my quest, and in the Karakoram, on a ledge high on Gasherbrum IV, I … Read More
Parts of the Uniform Commercial Code require that text be “conspicuous.” For example, section 2-316(2) states that a disclaimer of the implied warranty of merchantability must be conspicuous. Although section 1-201(10) of the UCC specifies that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color,” the UCC doesn’t say … Read More
[Updated 5 January 2016: Go here for my 2015 article on this topic under U.S. and English law; go here for my shorter 2015 article on this topic under U.S. law.] [Revised 11:00 p.m. EDT, May 23, 2012, to add that you should say “states the following facts.” Further revised 8:30 a.m. EDT, May 24, 2012, to change it to … Read More
An eagle-eyed reader who is aware of my long-standing interest in the phrase represents and warrants told me about a 2008 opinion of the Arizona U.S. District Court, Aspect Systems, Inc. v. Lam Research Corp. (Go here for a PDF copy.) Here’s the bit that the caught my reader’s eye: Neither Aspect nor Lam has proved the absence of a … Read More
