I expect that regular readers of this blog are familiar with syntactic ambiguity. An example: cats and dogs with brown fur. Does that refer to all cats, or just those with brown fur? It can’t hurt to repeat my new, improved definition of syntactic ambiguity, which I first trotted out in a post last month and have just now tweaked … Read More
For an article I have to write in the next few days, I’ve been leafing through textbooks intended to be used in teaching contract drafting. I had contemplated doing reviews of one or more textbooks, but I decided I’d rather focus on how I’d approach teaching contract drafting. That’s what the new article will be about. But I noticed that … Read More
Above is section 6.10 of A Manual of Style for Contract Drafting. Note the first sentence: Make sure all instances of a defined term use initial capitals. If one doesn’t, that can cause confusion—was it a mistake, or did the drafter intend that instance of the word or phrase to express a different meaning? I now propose an exception to … Read More
The phrase is defined herein is never a good sign. First, in the extract below, is defined herein to mean is a bloated version of means. Use means instead. Second, which is defined herein to mean, with or without parentheses, allows you to put a definition in a nonrestrictive clause. If the defined term you’re creating is worthwhile, it would … Read More
Check out the following, which is the text of an entire section: See the highlighted sentence at the end? It reminded me of that there’s another way of creating defined terms using autonomous definitions. At least for now, I’m calling this technique a “reverse autonomous definition.” Allow me to demonstrate how it plays out. Here’s an autonomous definition: “Affiliate” means … Read More
In a LinkedIn post, I challenged readers to find for me a contract that used shall be or will be in creating an autonomous definition. I wasn’t surprised that I was the only entrant in that thrilling competition. I submitted the following example: Using shall be in this context is as unhelpful as using is. That’s something I discuss in … Read More
This post nerds out on defined-term protocols. Specifically, should one use, or not use, the (or a or an) in defined-term parentheticals for defined terms that otherwise use the (or a or an)? MSCD says “include in a defined-term parenthetical the definite article the or the indefinite article a (or an), as appropriate. An article isn’t necessary unless the defined … Read More
[Updated 23 February 2024] Some people feel strongly that one shouldn’t use the article the with party-name defined terms that consist of a common noun. In other words, say Company, not the Company. Here’s what I say about that in A Manual of Style for Contract Drafting: If the defined term for a party name is a common noun, use … Read More
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
