I’m both a commentator and a guy who sells stuff. Those two roles sometimes bump up against each other in a way that can look awkward. For one thing, I tell anyone willing to listen that if an organization wants to put its contract process on a rational footing, it should adopt a comprehensive style guide for contract language, but … Read More
Generally, if something looks like a duck and quacks like a duck, then for purposes of contract drafting it’s best to refer to it as a duck. That sounds straightforward enough, but offhand I can think of few instances of caselaw where a court has said just that, although not in so many words. So I’m looking for some more … Read More
For the first time, I had a look at the Google searches that led people to this site. Since the beginning of the year, there have been more than 47,000 of them, covering a multitude of topics. Many point unerringly at topics that happen to be favorites of mine, such as “if a deadline is at midnight is it 11:59 … Read More
The other day, I was walking down the road when I was waylaid by two longtime readers, Chris Lemens and A. Wright Burke. They stuck a hood over my head and hauled me behind the bicycle sheds. They then proceeded to thrash me. I think Chris wielded a shillelagh, whereas A. Wright Burke, despite his higher-education trappings (M. Phil. and … Read More
I had a look on EDGAR for contracts that specify that a given choice is to be made by a coin toss (or “flip”). For the most part, those that provide for such a mechanism don’t get specific. Here’s an example: After a coin toss to determine who makes the first strike, the parties shall strike names from the list alternately until the … Read More
Today I happened to consult the Black’s Law Dictionary definition of ipso facto. Here it is: ipso facto (ip-soh fak-toh). [Latin “by the fact itself”] (16c) By the very nature of the situation <if 25% of all contractual litigation is caused by faulty drafting, then, ipso facto, the profession needs to improve its drafting skills>. I was tickled by the example provided. Seems logical to … Read More
The other day I issued a tweet that contained a link to a PDF copy of one of my articles. That prompted the following reply from someone I didn’t know: “A pdf? Too hard to read on my phone. Pass.” I replied in a way that suggested that I though the sender one of the contingent who regard it as … Read More
Three LinkedIn groups feature discussions related to contract drafting. “Contract & Commercial Management” caters primarily to contract-management professionals; you have to ask to join. I think anyone can join “Contract Drafters,” but the members I know are lawyers. “Drafting Contracts” is the newest of the three; it caters to lawyers, and you have to ask to join. (For anyone who’s … Read More
This morning I encountered the following sentence on EDGAR: Therefore, the obligations of the Sellers under this Agreement, including, without limitation, the Sellers’ obligation to sell the Shares to the Purchaser, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. It’s nothing … Read More
In modern discourse, it’s increasingly important not just to be right, but to be seen to be right. There’s no shortage of people offering, online, debatable interpretations of contract-drafting issues. And every few weeks, another questionable analysis is added to the pile. That increases the clamor in the marketplace of ideas, with the result that it’s harder to distinguish good ideas … Read More
