Behold the following sentence: If as part of resolving a dispute a party is required to pay the other party, it must no more than 15 days after the dispute was resolved pay the other party the amount in question, plus interest from the beginning of the [day] [date] the disputed payment was originally due […]
“Close of Business”: The Kind of Vagueness You Don’t Want
A reader alerted me to a recent opinion of the High Court of Justice of England and Wales in Lehman Brothers International (Europe) v. ExxonMobil Financial Services BV, [2016] EWHC 2699 (Comm) (here). At issue was the meaning of the phrase close of business, as used in a notices provision in a contract. ExxonMobil submitted a notice […]
An Example of a Confusing Way to State a Point in Time
The blog post by Peter Mahler that I mention in this post about at its sole discretion offers an example of another, unrelated drafting problem. The contract at issue required the company to exercise its option within 60 days after the later to occur of the termination date and “the final resolution of any disputes relating to […]
“On an Ongoing Basis”
I’ve written about abuse of basis, as in on a timely basis. See this 2007 post. But silly me, I didn’t think of the most jargontastic variant, on an ongoing basis. Don’t ever use it. If you ever have, plead forgiveness from the gods of drafting. If you don’t believe me, here are some examples […]
“Periodically”
Friends, there’s never a good reason to include periodically in a contract. Consider language of obligation: The Bank will provide the Client periodically with a statement of account for each Account, identifying Assets held in the Accounts. If I were the client, I’d sure want to be more specific that periodically, which could mean “at regular […]
“At All Times”
As a general matter, don’t use at all times. If you refer to a given period, if you say someone has to do something, if you say that things were a certain way, usually it follows that whatever it is applies at all times, unless you specify otherwise. Here are some unprettied-up examples from EDGAR: […]
“Within 30 Days Prior To”
Keith Bishop—he of the California Corporate & Securities Law blog—was kind enough to tell me about this post, dealing with a dispute over the meaning of the phrase “within 30 days prior to” in the context of the time period for exercising an option. The court opinion in question is Wilson v. Gentile, 8 Cal. App. 4th 759 […]
A New Provision Specifying a Drafting Convention Relating to Time
When you encounter confusion in contract language, the thing not to do is to stamp your feet and insist that your interpretation is the sensible one. The confusion I have in mind is whether a deadline of, say, 5:00 p.m. passes once you’ve entered the first second of the five o’clock hour or whether it ends […]
Revisiting “Midnight”
Today I saw the following @matt_levine tweet: How lawyers say "midnight." http://t.co/2fZJUY9NBa pic.twitter.com/osjP0ItCd5 — Matt Levine (@matt_levine) March 16, 2015 The number of retweets confirms that there’s train-wreck fascination in convoluted lawyer prose. Midnight is the boundary between the last second of one day and the first second of the next day, so every day has […]
Reminder: Affiliates as of When?
[Updated October 24, 2014: The New York Court of Appeals affirmed the lower court’s ruling. (Go here for a PDF copy of the opinion; thank you to Steven Sholk for sending me a copy.) Here’s most of what the court had to say on this issue (citations omitted): Absent explicit language demonstrating the parties’ intent to bind […]