Selected Provisions

A “Successors and Assigns” Example of Turning Pointless into Wrong

I fished this from the depths of EDGAR: The highlighted part is a “successors and assigns” provision. Usually they’re pointless; in this 2013 article, I consider seven possible functions of the “successors and assigns” provision and find them all wanting. Here’s what I conclude: [I]t’s a useless provision that survives because drafters are unsure what function it serves and so … Read More

My Materials on Contract Boilerplate

I thought it high time that I collect in one place my writings (and a couple of videos) on boilerplate. (By “boilerplate,” I mean the stuff relating to administration and dispute resolution that you see toward the back of most contracts.) The main headings are in alphabetical order; the items under each heading are in reverse chronological order. Boilerplate is … Read More

Counterparts: An Example of Categories-of-Contract-Language Dysfunction

Counterparts provisions are a mess. For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that. And whatever counterparts are, the issue … Read More

When an Entire Provision Is Redundant

I’m used to thinking of redundancy (actual or potential) as occurring at the level of parts of speech. For example, in doublets or triplets of adjectives (null and void). Or verbs (indemnify and hold harmless). But I’m becoming more attuned to redundancy of entire provisions. (By provision, I mean a complete utterance, whether a sentence or part of a sentence.) … Read More

More Industry-Wide Elegant Variation: Amendments in Writing

Last year I wrote in this blog post about “elegant variation” across the contracts universe in how one says you have to keep confidential information to yourself. In the same spirit, consider these different ways of requiring that amendments be in writing: [To be effective,] Any amendment to this agreement must be in writing. An amendment of this agreement will … Read More

Including Federal Law in Governing-Law Provisions

I received this cry for help from Canada: I would very much appreciate your help in addressing a bit of nonsense peculiar to Canadian contracts. Like the US, Canada is a federal jurisdiction. Like the US, contract law is a matter of Provincial (or State) jurisdiction. A practice has developed in the choice of law clause in Canadian contracts, which … Read More

In the Delaware Chancery Court, a Cautionary Tale on Consent-to-Jurisdiction Provisions and the Perils of Redundancy

In NB Alternatives Advisers LLC v. VAT Master Corp. (Del. Ch. 22 Apr. 2021) (PDF here), the defendants wanted to litigate a matter in Wisconsin; the plaintiffs sought a permanent injunction. On an expedited basis, the Delaware Court of Chancery granted the injunction. Hall-of-fame tipster Glenn West then told me about it, so on an expedited basis, here we go. … Read More

Step-Down Provisions? No Thanks

Check out the provision above. It was put on Twitter by Aiden Durham, who said, “There’s gotta be a better way?!” Filthy McNasty tagged me in the ensuing thread, so here we are. The extract above is from an Arizona contract. Arizona has a “strict blue pencil” approach to enforcing post-employment restrictions on employees (generally known as “restrictive covenants”), which … Read More

Check Out My Hot Take on Notices Provisions

Check out my latest video for LegalSifter, Ken’s Hot Take on Notices Provisions—all 8 minutes and 35 seconds of it. It’s available here. You can also get my latest and greatest notices provision and a list of related resources. Why notices provisions? Because I’ve been noodling with my notices provision over the past couple of years. Because I’ve revisited notices … Read More

Don’t Keep Refighting the Last Force-Majeure Battle

"Crap! We added 'pandemic' to our force majeure provisions, but no one told us to add 'Arctic outbreak' or whatever the freak you call this!" Drafters are always refighting the last FM war. Instead, play a long game and lose the parade of horribles. See https://t.co/lLkFG3UM0p https://t.co/z9T1THoHJ8 — Ken Adams (@AdamsDrafting) February 20, 2021 That’s it. That’s the post.