This week I was noodling with some contract language, and I wrote the Company or any of its Members. That was a mistake—Member was defined to mean a member of the Company, not a member of any limited liability company. I should have said the Company or any Member. I was attuned to this because the day before I had … Read More
Recently I saw this tweet by @strowhiro: Hey, #lawtwitter. Contracts with a defined terms section AND other terms defined throughout: fine or sloppy? — Michelle Strowhiro (@strowhiro) October 19, 2022 It’s a great question, but I thought that the odds of getting clear answer on Twitter were slim, even with 164 people taking a shot at it. To my knowledge, … Read More
Last week I tweeted this image: In the tweet, I said this: There’s a disconnect in meaning between the definition (green) and the defined term (red). The way to fix it is by “clarifying the scope” of the definition: adding a phrase-plus-comma at the beginning of the defined-term parenthetical. Any suggestions? In a reply, I offered this fix, while acknowledging … Read More
Defined terms add value—they allow you to state a concept more concisely and consistently than you might otherwise. But they come at a cost: Using an autonomous definition breaks up reading—you force the reader to read both the autonomous definition and the related provision. Integrated definitions add a bit of clutter in the form of the defined-term parenthetical. All the … Read More
This is what my definition sections look like: But you could instead opt to present the definition section using a table format: Using a table format is, as far as I can tell, particularly popular in England and other Commonwealth jurisdictions. The two primary characteristics of using a table format are (1) a break between the defined term and the … Read More
Yesterday I saw this cry for help on Twitter from @thepixellawyer: @AdamsDrafting ever seen this? It's new to me. #strange pic.twitter.com/40Fw2LcND9 — Chris Brown (@thepixellawyer) September 28, 2021 So I went on EDGAR. Westlaw offered me 1,196 contracts containing the phrase, so it’s a thing. On the other hand, it’s not commonplace—I’ve been hanging out in this neighborhood for 20 … Read More
One of the fringe benefits of my being LegalSifter‘s chief content officer—besides health insurance and all—is that I get exposed to a far broader range of contract language than would otherwise be the case. So today, I discovered that some drafters use is as a definition verb. I saw it first in a sample provision included in advice built into … Read More
You’re of course aware that in many contracts, the unnecessary defined term Party is defined using this sort of thing: individually a “Party” and collectively the “Parties”. It’s ridiculous—we know how singular and plural work, thanks. Last year I did this post about how drafters use that formula for other defined terms, making it even more insane. Well, I can … Read More
Here’s something I tweeted this week: Tonight's question: What acronym have you seen used in a contract as the defined term for that contract? Off the top of my head, I recall having seen NDA, MSA, and CRADA. (I'm not endorsing this practice!) — Ken Adams (@AdamsDrafting) September 22, 2020 Here are the examples people submitted in response, plus others … Read More
It’s worse than pointless to enumerate the elements in a definition section: it clutters up the works. The elements are in alphabetical order. That by itself is enough of an organizational framework. Nevertheless, some people enumerate the elements in a definition section. The normal way would be to have the first element be, say, section 14.1 of article 14. But … Read More
