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 after the last second of … Read More
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 a midnight at each end. … Read More
[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 future affiliates of the contracting … Read More
MSCD 10.66 explains why I’m not keen on the term calendar year as a way to avoid ambiguity over what year means. Well, at one of my recent Geneva seminars, a participant introduced me to the term civil year, meaning the twelve months beginning January 1. And lo and behold, it’s on EDGAR. Here’s an example from a contract between … Read More
When you refer to something in a contract, the meaning can vary depending on the timeframe. For example, MSCD 13.4 and this 2009 post discuss how a contract reference to “subsidiaries” could mean subsidiaries at the time of signing or at any given time in the future. It’s best to avoid confusion over the intended meaning by making it explicit. … Read More
Today I found myself on the website of the Australian Department of Immigration and Border Protection, looking to apply for a visa. (My Australia “Drafting Clearer Contracts” seminars are next week; go here for links to more information.) While on their website, I noticed the following graphic: Interesting, I says to myself. In an Australian passport, the day and month … Read More
Following up on my post about the date that is (here), here’s another bit of clutter that occurs in references to time—the phrase during the period. Like the date that is, it occurs in more than 10,000 contracts filed on EDGAR in the past year. Here are some examples, as tweaked by me: The Partnership will furnish to each Underwriter, … 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
While rooting around on EDGAR, I spotted a kind of provision that uses the phrase “one year and a day.” Here are three examples: Each of Folio and PMI hereby covenants and agrees that it will not institute against, or join or assist any other Person in instituting against, PFL any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other … Read More
[Updated October 1, 2008] Consider the following provision: During the term of this agreement and the following 24 consecutive months, the Consultant shall not … In this context, the word consecutive is redundant. The same applies to use of consecutive with other units of time. But consider this provision: The Employee shall spend two months every year in Acme’s Budapest … Read More
