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
Via @thecontractsguy I learned of this article in the National Law Review. It discusses East Texas Copy Systems, Inc. v. Player, No. 06-16-00035-CV, 2016 WL 6638865, at *1 (Tex. App. Nov. 10, 2016), an opinion of the Texas Court of Appeals (opinion here). Here’s what happened: An individual by the name of Jason Player sold his business to East Texas Copy Systems, … Read More
[Updated 13 June 2017: Prompted by this more recent post, I’ve had a change of heart. I think this should be language of declaration: The parties acknowledge that this agreement does not address the law that governs disputes arising out of this agreement or the subject matter of this agreement. Why? Because it doesn’t really make sense to state as a … Read More
Table 4 in MSCD lists a bunch of suboptimal ways of saying may. In the past three years I’ve identified others; see here and here. Today, I’m proud to offer you yet another: is allowed to and its variants! Here are three examples: … and in the absence of any such indication, the Holder shall be allowed to [read may] presume … Read More
Consider the following sentence: The Equipment will comply with the Specifications. What category of contract language is it? According to my categories-of-contract-language analysis, use of will would make it language of policy with respect to a contingent future event. But language of policy is only for the ground rules of a contract—stuff that applies, or happens, automatically. California law governs … Read More
Here, from EDGAR, are instances of obligations being referred to as irrevocable: “Reimbursement Obligation” means the absolute, unconditional, and irrevocable obligation of the Borrower to reimburse the Issuing Bank for any drawing honored by the Issuing Bank under a Letter of Credit. The obligation of Borrower to make payments hereunder and to observe and perform all of its other obligations … Read More
I’m back at Notre Dame Law School, teaching an intensive course in contract drafting—one semester crammed into just under three weeks. As usual, the categories of contract language—my term for how verb structures determine function—is taking a lot of our time. To help my students become familiar with this topic, we looked at some problematic sentences and considered alternatives with more … Read More
At MSCD 3.168–.196 and in this article, I discuss why the phrase at its sole discretion and its variants are pernicious. That’s because the unfettered discretion that it seems to suggest can fall foul of the implied duty of good faith. Peter A. Mahler (@PeterMahlerEsq) of the law firm Farrell Fritz offers in this post on his New York Business Divorce blog … Read More
