Defined Terms

Putting Definitions in a Definition Section Versus Putting Them “On Site”

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

Is Clarifying the Scope of a Definition Worth It?

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

Determining Whether a Defined Term Is Worth Using

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

Why I Don’t Use a Table Format for the Definition Section

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

The Weirdest Thing You’ll See Today: “Herein So Called”

Yesterday I saw this cry for help on Twitter from @thepixellawyer: @AdamsDrafting ever seen this? It's new to me. #strange — 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

Using “Is” as a Definitional Verb? Nah

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

More Singular-and-Plural Defined-Term Insanity

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

Don’t Use an Initialism for a Contract’s References to Itself!

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

Deranged Definition-Section Enumeration

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

More Weirdness in Creating Defined Terms

I’ve spent some quality time lately with definitions of the defined term Event of Default. And I’ve seen some strange things. Here are three examples: enjoy! Here it seems as if the definition contains the defined term: The example below is basically the same, except the defined-term parenthetical is shifted earlier in the sentence, without making any more sense: An … Read More