From my perspective as someone trying to figure out how to make contract language clearer, a welcome development in Delaware caselaw was what the Delaware Court of Chancery had to say about the phrase in all material respects. The case is Akorn, Inc. v. Fresenius Kabi AG, No. CV 2018-0300-JTL, 2018 WL 4719347, at *85 (Del. Ch. 1 Oct. 2018), aff’d, … Read More
I’m pleased to be able to make available my law review article The Word Material Is Ambiguous in Contracts, Why That’s a Problem, and How to Fix It. It’s in Scribes Journal of Legal Writing; go here for a copy. (The issue in which it appears hasn’t yet been published, but these days no one waits for that.) Use of … Read More
The word material and the phrase material adverse change haven’t featured much on this blog in recent years. That’s mostly because MSCD chapter 9 covers the subject pretty comprehensively, and because there haven’t been any recent developments of particular interest. But today I finally got around to reading, after a year, this 2015 article in the Wall Street Journal about alternative … Read More
It’s commonplace for contracts to provide that a party may terminate for “material breach” by the other party. I’m not keen on that standard: as longtime readers will know, material is not only vague, it’s also ambiguous—drafters use material to mean either “of dealbreaker-level importance” or just “significant” (in other words, “nontrivial”). (If I’m using defined terms, I’d use the defined term Significant … Read More
