Defined Terms

Yes, the Defined Term “This Agreement” Really Is Pointless

I’ve said any number of times (most recently in this 2016 post) that creating the defined term this Agreement is pointless. Actually, let’s just call it dumb. My thanks to @neil_neilzone for making that clear this morning with the following tweet: https://twitter.com/neil_neilzone/status/870596648132628480 When you create the defined term this Agreement by means of an integrated definition in the introductory clause, the … Read More

Stating the Part of Speech of a Defined Term

An autonomous definition might refer to the part of speech of the defined term. If it does, invariably it’s because one or more related forms of that defined term are used in that contract and are treated as defined terms too. Here are four examples: “Transfer” means, when used as a noun, any voluntary or involuntary, direct or indirect (whether through … Read More

Which Comes First, the Definition or the Provision That Uses the Definition?

Recently I had occasion to revisit an issue I thought long settled. Because it involves reader comprehension generally, I took the liberty of buttonholing people involved in legal writing but not contract drafting. Here’s what I asked them: Below are two sentences. The second is the definition of a key defined term used in the first. Necessarily, one has to come … Read More

Putting the Defined-Term Parenthetical After “The Following”

In this 2014 post I described what seemed an oddity: putting the defined-term parenthetical at the beginning of the definition. Well, I think that with some tweaking it can be turned into a legitimate technique. Here’s how I’ve just described it in something I’m working on: If you put the defined-term parenthetical at the end of a list of items and … Read More

Circular Definitions in Contracts

I’d like now to address a concept in a way I haven’t had occasion to address it before: the circular definition. Consider the following contract definitions: “Bonus Date” means a date on which Acme determines that a Bonus Period concludes. “Bonus Period” means a period that commences on a date determined by Acme and concludes on a Bonus Date. Their … Read More

“Non-Business Day”

The other day I saw the following tweet, mentioning a post by Ruth Gámez and Fernando Cuñado: Diccionario de #ingles jurídico: «business day» vs. «non-business day» I @traduccionjurid https://t.co/r31BKQaDOV — Leon Hunter SLU (@LeonHunterSL) October 13, 2016 I realized in quick succession that (1) I hadn’t encountered the term non-business day and (2) it’s massively lame. So is non-working day. A … Read More

When Contracts Look to Dictionaries

At an in-house seminar in Moncton, New Brunswick, yesterday—hi, guys!—one of the participants mentioned that he had seen a contract in which it was stated that all undefined terms were as defined in the Oxford English Dictionary. Of course I found an example of that provision on EDGAR: [T]erms not defined in this Development Agreement shall have the meaning ordinarily … Read More

Don’t Use Definition-First Autonomous Definitions

MSCD offers two ways to create defined terms: autonomous definitions and integrated definitions. Here’s an autonomous definition: “SEC” means the U.S. Securities and Exchange Commission. Here’s an integrated definition, with its associated defined-term parenthetical: … Acme Incorporated, a Delaware Corporation (“Acme”). But one also sees a different way of presenting definitions: as autonomous definitions, but with the defined term placed at the … Read More

“Purchase Price” Has Two Meanings

I’ve long observed that the defined term Purchase Price is used two convey two meanings: First, the price at which something is to be sold, as in this example: Subject to the terms and conditions hereof, the Company hereby agrees to issue and sell an aggregate of one hundred nineteen thousand nine hundred forty (119,940) shares of the Preferred Stock … Read More

A List of Paired Party-Name Defined Terms You Don’t Want to Use

It’s a bad idea to use in contracts paired party-name defined terms that differ only in their final syllable: they force readers to work harder, and there’s always the risk that the drafter will by mistake use one defined term instead of the other. Today I asked people on Twitter to help me compile a list of such paired defined terms, and … Read More