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 express multiple meanings, you use … Read More
[Update: This 30 July 2017 post rendered this post redundant.] In this 2015 post I consider Nothing in this agreement gives X the right to [do something]. Now let’s consider Nothing in this agreement prevents X from [doing something]. We have to ask the age-old question: what category of contract language is this? Is it language of discretion? In other … Read More
Consider this sentence: After termination, Acme will have 60 days to return to Widgetco any Confidential Information in Acme’s possession. What category of contract language should that be? Presumably obligation: No later than 60 days after termination, Acme shall return to Widgetco any Confidential Information in Acme’s possession. How about this one: After termination, Acme will have 60 days to … Read More
I take issue with the wording of the standard clauses promulgated by the various arbitration institutions. I’ve written about shortcomings in the American Arbitration Association’s standard clause (see this 2010 article), but the same problems are on display in others. That’s not surprising—most drafting is poor, so why should arbitration clauses be any different? The standard clauses are all short, … Read More
A feature of my categories-of-contract-language framework is something I used to call “passive-type policies” but in the fourth edition of MSCD (forthcoming) call “buried-actor policies.” In this 2016 post I wrote about is subject to as an example of a buried-actor policy. Here’s another: is eligible for. Consider how it’s used in this sentence: The Employee is eligible for a … Read More
Regular readers will know that it has long been a hobby of mine to collect weird ways that drafters find to say may. But at some point, your cross the line and it’s no longer fun and games. Instead, you confront the horror. Friends, we’ve reached that point. Behold the following: The Grantee is hereby empowered to do any and … Read More
In MSCD 3.47, I say the following: For purposes of business contracts, as opposed to statutes, it’s unlikely that anyone could successfully argue that instead of expressing an obligation, a particular shall is “discretionary” and means may or should. Well, courtesy of @mrsalzwedel I learned of PacifiCorp v. Sempra Energy Trading Corp., No. CIV-04-0701 (E.D. Cal. 2 July 2004), an opinion … Read More
Here’s what I said in this 2014 post: [I]f a party that is subject to a condition is in a position to act as if the condition has been satisfied even if it in fact hasn’t been satisfied, should the issue in question instead be stated as an obligation? My answer was yes, it should. This issue is subtle enough … Read More
In this 2011 post and this 2009 post I explored using license-granting language instead of language of discretion. Here’s what MSCD says about this: Granting language is analogous to language of discretion. Consider [1-4], [1-4a], and [1-4b]. They all convey the same meaning, but granting language using the noun license, as in [1-4], offers two advantages. First, license-granting language makes … Read More
Readers with a long memory will remember this 2014 post about a “quick reference” analysis of the categories of contract language prepared by a seminar participant. Well, after almost three years, I’ve come up with my own version, or at least a first draft of it. Go here for a PDF. (The “Reference” column is for citations to MSCD; I’ll … Read More
