I’ve written about consequential damages (primarily in this 2010 post and the follow-up), but I’ve been acutely aware that I’ve pointed out problems without proposing a better way to handle excluding consequential damages. That’s what I attempt with this post. Here’s a randomly selected limitation-of-liability provision: In no event shall a party have any liability to another party for any … Read More
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
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 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
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
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
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 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
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 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
