Yesterday I learned of an opinion—hot off the presses—of the Missouri Court of Appeals, Eastern District, Division One, by Judge Kelly C. Broniec. The case is Pelopidas, LLC v. Keller, No. ED 109395, 2021 WL 3501988 (Mo. Ct. App. 10 Aug. 2021) (PDF here). This opinion concerns Keller’s appeal of a lower court decision interpreting the following sentence from a … Read More
Thank you to the readers who told me about Omni MedSci v. Apple (Fed. Cir. 2 Aug. 2021) (PDF here). They heard about it from this post on Patently-O. And in this post on IP Draughts, Mark Anderson expresses interest in having me comment on this case. Who am I to disappoint Mark? I’ll leave you to read those posts … Read More
Wearing my LegalSifter hat, today I researched how contracts refer to inspection of goods. In doing so, I encountered the following in this Yara purchase order (selected at random): All Goods may be inspected by the Purchaser within a reasonable time after delivery to the location required by the Purchaser. If on inspection, any Goods are found to be unsatisfactory, … Read More
I’ve mostly given up policing what passes for the marketplace of ideas—it’s too chaotic. But occasionally the algorithm tells me I might as well say something about something. So now, I’ll offer my thoughts on this post, entitled Canceling the Word “Shall” in Leases, Contracts and Legal Forms, on the Holland & Knight Retail and Commercial Development and Leasing Blog. … Read More
The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts. … Read More
Thanks to a hot tip from Deep Throat Glenn West, I learned about the Fifth Circuit’s opinion from earlier this year in Landmark American Insurance Co. V. Lonergan Law Firm, PLLC (here). An insurance company claimed that appellant Lonergan, a lawyer subject to a malpractice claim, had failed to “report” the claim as she was obligated to under her insurance … Read More
Dale Carnegie, an early-twentieth-century U.S. writer and lecturer on self-improvement, famously said, “Tell the audience what you’re going to say, say it; then tell them what you’ve said.” Whatever the merits of that gem, it doesn’t apply to contracts. In particular, don’t say what you’re going to say, as in this example: This agreement states the terms under which the … Read More
Late last year I did my first post on dual verb structures. I’ve done four of them, here, here, here, and here. Actually, make that six, because I now introduce to you the supremely effed up structure agrees to X and continue to X. I found only a few examples on EDGAR, but enough to confirm to my satisfaction that … Read More
For 15 years I’ve been haranguing people about the has a duty test. I can be relied on to ask a given group, way too many times, What is the first diagnostic test? In my dreams, those in attendance respond in unison, boot-camp style: The has a duty test! Allow me to explain. The foundation of controlled drafting is how … Read More
Today’s I offer you another interesting contracts verb structure, hereby instructs. Here are some examples from EDGAR: The Employee hereby instructs the Company to transfer to such Managers Insurance and/or Pension Plan the amount of Employee ’s and the Company’s contribution from the Monthly Salary, as detailed in Annex A. The Collateral Manager hereby instructs the Collection Account Bank, on … Read More
