Although way back in 2008 I wrote about complete and accurate (here), yesterday I realized that I hadn’t written about use of completely as rhetorical emphasis. So I exhumed the following corpses from EDGAR: In addition, all financial data must be completely and accurately recorded in compliance with applicable law and Invesco’s accounting policies and procedures. … the Executive agrees … Read More
Here are five versions of the same sentence, but with the phrase at its expense positioned differently in each one: 1. At its expense, the Publisher shall send 20 review copies of the Work to individuals named by the Author. 2. The Publisher shall at its expense send 20 review copies of the Work to individuals named by the Author. 3. … Read More
Consider the following, which relates to the consequences of Acme’s cancelling a purchase of equipment: Acme shall reimburse the Vendor for reasonable expenses that the Vendor incurs in connection with manufacture of the Units being cancelled. Hmm. Does that mean Acme has to reimburse only expenses incurred after cancellation? Arguably. Now consider this: Acme shall reimburse the Vendor for reasonable … Read More
Those who consult MSCD will be familiar with the notion that it’s unnecessary and distracting to use initial capitals (“nitcaps,” to those in the know) when referring to the parts of a contracts. In other words, in cross-references the words section, exhibit, and schedule (among others) should be all lowercase. It follows that one should also use all lowercase letters … Read More
At yesterday’s “Drafting Clearer Contracts” seminar in Aarhus, Denmark, for MHI Vestas Offshore Wind, one of the participants asked me whether I was familiar with the convention that has internal cross-references stated in initial capitals (Section 5.4) and cross-references to other contracts stated in all-lowercase letters (section 3.2 of the Distribution Agreement). I said I was unfamiliar with that convention, but that it … Read More
Behold what I just found washed up on the shores of the SEC’s EDGAR system: PLAIN ENGLISH WARRANT AGREEMENT This is a PLAIN ENGLISH WARRANT AGREEMENT dated May 22, 2008 by and between RELYPSA, INC., a Delaware corporation, and TRIPLEPOINT CAPITAL LLC, a Delaware limited liability company. What the … ! First off, if you want your contract to be in plain English, then make … Read More
The phrase the date that is—as in before the date that is, after the date that is, no later than the date that is, and so on—is almost always clutter and can be surgically excised. Nevertheless, it occurs in more than 10,000 contracts filed on the SEC’s EDGAR system in the past year. Here are some examples dredged from EDGAR, … Read More
A few days ago I received from my daughter’s school a form with the heading “Influenza Vaccine Consent/Declination.” I had never met declination, meaning “formal refusal,” in the wild before, but I knew that I didn’t like it. It’s stultifyingly bureaucratic. (@bretsmoore will tell you that it also means the angular distance of a point north or south of the celestial … Read More
I recently saw the following on Twitter: Do you think there are legalisms (terms of art) that cannot be replaced with plain language? We’re making a list: http://t.co/Hd0ZLidJK7 — Cheryl Stephens (@CherylStephens) June 20, 2013 It prompted me to think, Hey, that’s a great idea! Why don’t I ask my readers to help compile a list of contract terms of … Read More
The Chicago Manual of Style is an essential resource. It’s useful even for contract drafters (see this 2012 post). But I’ve long had a quibble about its guidance on one small issue regarding capitalization of words denoting political divisions. So today I exchanged emails with the online Chicago Style Q&A—itself a great resource. If I understood it correctly, the interpretation … Read More
