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Adams on Contract Drafting

The Published Version of the Quick Reference to the Categories of Contract Language

Posted on February 3, 2018 by Ken Adams

A year ago I published in this post the first draft of what I called a “quick reference” to the categories of contract language—a summary of the different categories, what they look like, what they’re used for, and where you can find more information. Go here for the version included in chapter 3 (The Categories of […]

Posted in Categories of Contract Language, MSCD 2 Comments

Further Adventures in the Categories of Contract Language: How to Express Invoicing

Posted on January 26, 2018 by Ken Adams

For a while now, I’ve asked myself what category of contract language to use when providing for one party to invoice the other. Here are the possibilities: Language of obligation: Widgetco shall invoice Acme monthly in arrears for purchases under this agreement. That doesn’t make sense, as it suggests that Acme could bring a claim […]

Posted in Categories of Contract Language 16 Comments

“This Agreement Allows”

Posted on January 14, 2018 by Ken Adams

I signalled in this post that my task of compiling guidelines to the building blocks of contract language is largely done. But it will never be over, and here’s an example of that. I recently encountered the formula this agreement allows. That sent me to EDGAR, where I found the following examples: As a general […]

Posted in Categories of Contract Language 3 Comments

Using Language of Discretion Versus Using Language of Obligation to Express a Condition

Posted on November 21, 2017 by Ken Adams

Welcome back to the categories of contract language! Consider the following alternatives: Language of Discretion The Customer may purchase Widgets only by using Acme’s purchase-ordering system to submit a purchase order to Acme. Language of Obligation Used to Express a Condition To purchase Widgets, the Customer must submit purchase orders to Acme through Acme’s purchase-ordering […]

Posted in Categories of Contract Language 5 Comments

Another Skirmish in the “Shall” Wars

Posted on August 24, 2017 by Ken Adams

Today a reader posted the following comment (found here): Ken, I have been pushing your rules about shall and must since I started drafting contracts. Recently, a colleague said that we should use must exclusively. He pointed to the following link to bolster his case: https://www.faa.gov/about/i… I wanted to point it out for your opinion. […]

Posted in Categories of Contract Language 3 Comments

Revisiting Absence of Prohibition

Posted on July 30, 2017 by Ken Adams

A benefit of this blog is that I get to try out new ideas. Often enough, I end up revisiting those ideas. That can make the original post out of date, but that’s a blogging fact of life. (I’m not disciplined enough to always put a link in the original post.) Here’s an example for […]

Posted in Categories of Contract Language 26 Comments

Don’t Vary Verb Structures Depending on the Party

Posted on July 24, 2017 by Ken Adams

In this comment to a recent post, a reader outlined steps they’ve taken to make their contracts simpler and clearer. For purposes of this post, what’s of interest is that those steps include the following: … use “will” for our obligations and “shall” for the other party, … This is only the second time I’ve encountered the […]

Posted in Categories of Contract Language Leave a Comment

“Is Committed To”

Posted on July 9, 2017 by Ken Adams

This is from an intercompany services agreement dated 3 July 2017 between General Electric Company and Baker Hughes that I happened upon in the SEC’s EDGAR system (PDF here): SECTION 10.16 Integrity. Each Party covenants that it is committed to unyielding integrity and will act in a manner consistent with the GE Integrity Guide for […]

Posted in Categories of Contract Language 1 Comment

How to Handle Statements of Fact, in 397 Words

Posted on July 7, 2017 by Ken Adams

Recently I sent a consulting client a short explanation of how I handle statements of fact. Here it is, in case it’s of interest: I thought you might find it helpful if I summarized how I treat statements of fact. As a general matter, incorrect statements of fact give rise to a remedy. If the […]

Posted in Categories of Contract Language Leave a Comment

“Shall Means Shall”?

Posted on June 28, 2017 by Ken Adams

I’ve stated elsewhere (for example, in this 2014 article) the advantages of using shall to express an obligation imposed on the subject of a sentence, if the subject is a party to the contract. The primary advantage is that shall gives you an extra tool to work with. Instead of using will or must to […]

Posted in Categories of Contract Language 8 Comments

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