Odds and Ends

Four Contract-Drafting Axioms

To coin a phrase, We hold these truths to be self-evident: It’s preferable to draft contracts consistent with a set of guidelines for contract language, as opposed to relying on conventional wisdom, improvising, or simply copying. That’s why I wrote MSCD. It’s the only such set of guidelines, and with each new edition it becomes more entrenched. I’d be surprised … Read More

Thoughts on Contract Interpretation

Go here for an article I posted on LinkedIn today, Be Afraid of Contract Interpretation. Every so often I post a particularly general piece on LinkedIn instead of on this blog, with the notion that something on LinkedIn might catch the attention of people who would never have heard of me otherwise. What I have to say on LinkedIn will generally … Read More

My Advice to a Frustrated Reader

Here’s what a reader said to me in an email: I’m frustrated. Even though I’ve been a lawyer for 21 years, my contract drafting skills are not what they should be for a lawyer with my experience. For example, I’m drafting a termination agreement for a consulting services agreement. A friend and I briefly discussed what should be in it. … Read More

An “Efforts” Search-and-Replace Glitch

I wrote about search-and-replace glitches in this 2015 post. Well, here’s another one: You might have noticed that I’ve been in an efforts frenzy. As part of reassessing my position on efforts, I searched on EDGAR for a bunch of efforts variants, including the unlikeliest ones I could think of. One of them was commercially efforts. Yeah, sounds crazy, but … Read More

Relying on What Something “Sounds Like”

In this post I indicate that I wasn’t convinced by a treatise saying that it “sounds as if” reasonable best efforts imposes more of an obligation than does commercially reasonable efforts. Here’s some background on that. I have a halfway decent ear for English usage, perhaps as a result of having grown up in a bookish family. It’s an important weapon in … Read More

My Role in an Indian Contract-Drafting Competition

Indian law schools are partial to contract-drafting competitions. As I noted in this 2011 post, I think such competitions are a good idea. Recently someone from the boutique Indian law firm TRA told me about the competition his firm was helping to run with the National Law School of India University. He asked me whether I could think of any … Read More

Punctuated Equilibrium and Contract Drafting? Wha?

You’ve heard of “punctuated equilibrium,” right? That’s the notion that the evolution of species consists of relative stability for long periods interspersed with much shorter periods during which many species become extinct and new species emerge. (Go to Wikipedia for more.) Well, bear with me. I first paid attention to severability language in this 2011 post. I revisited the subject … Read More

Reminder: Don’t Rely on Dictionaries

Here’s my favorite law-conference anecdote: I’m on a panel. The topic of represents and warrants comes up, as it tends to. Another panel member is unimpressed by what I have to say. As his way of resolving the matter, he asks imperiously that a copy of Black’s Law Dictionary be brought to him, and he proceeds to read aloud the definition … Read More

Don’t Expect Applause for Writing MSCD-Compliant Contracts

This from a reader: For documents that I have drafted using your style manual, I do not get comments from clients or other lawyers saying, “Wow, this is so much clearer and easier to read!” So I don’t even have anecdotal evidence to support your approach. My own experience, however, is that it saves me time when I review a … Read More