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Adams on Contract Drafting

Exploring the Standard of Care in Services Agreements

Posted on November 16, 2019 by Ken Adams

Regular readers will know that I’m an advisor to LegalSifter, the artificial-intelligence-plus-expertise company that helps with review of the other side’s draft. In that capacity, I help decide what issues to look for, and I figure out how those issues are expressed in contracts. In doing that work, I get to explore systematically all sorts […]

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Where’s the “Efforts” (or “Endeavours”) Outrage?

Posted on September 23, 2019 by Ken Adams

In July my law-review article on efforts (aka endeavours) provisions was published. (PDF here.) It’s about as contrarian as the subject matter allows. I beat the tar out of the conventional wisdom that the U.S. dealmaking establishment still clutches like a moth-eaten teddy bear. And I discuss in gruesome detail the preposterous positions adopted by […]

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Reliance? Material Inducement? Wut?

Posted on September 14, 2019 by Ken Adams

The other day, while researching contract provisions that refer to reliance, I saw the following in a provision waiving jury trial (excuse the all caps; bold added): EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 8(C) CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND […]

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Stop Using Consent-to-Jurisdiction Provisions!

Posted on August 24, 2019 by Ken Adams

Recently I devoted this post to John F. Coyle’s article on governing-law provisions. I’ve now gotten my hands on his recent article Interpreting Forum Selection Clauses (here). (I call them “jurisdiction provisions.” More on that later.) In John’s words, jurisdiction provisions are “contractual provisions in which the parties agree to litigate their disputes in a […]

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Having Nonparties Release Stuff

Posted on August 2, 2019 by Ken Adams

I’m doing what I can to advance the cause, but we’re all fortunate to have Glenn West plugging away, posting his analyses at such a rate that I have a hard time keeping up. For his collected oeuvre, go here. Today’s post is inspired by something from his archives, this 2016 post about whether a […]

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Revisiting Governing-Law Provisions

Posted on August 1, 2019 by Ken Adams

In 2015 I did these three posts about governing-law provisions. Well, it’s time to look at the subject again, thanks to a law-review article by John F. Coyle of University of North Carolina at Chapel Hill. The article is entitled The Canons of Construction for Choice-of-Law Clauses; go here for a PDF. Professor Coyle is […]

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State Activism Through Contracting

Posted on April 7, 2019 by Ken Adams

While I was rooting around in hotel agreements, the following provisions caught my eye. First Example This was in a contract between a hotel and some instrumentality of Tennessee state government: The HOTEL certifies, under penalty of perjury, that to the best of its knowledge and belief the HOTEL is not on the list created […]

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Conflicting Provisions: Seeking Examples

Posted on March 22, 2019 by Ken Adams

You’re drafting a contract, as you’re in the habit of doing. You include a waiver of jury trial, for whatever reason. And you make California law the governing law. Or maybe Georgia law. Well, for purposes of trials in state court, courts in California and Georgia have held that pre-litigation waivers of jury trial are […]

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An Instance of Inconsistency in Saying that Notices Must Be in Writing

Posted on October 9, 2018 by Ken Adams

I recently had a random Edgar encounter with the following set of internal rules of interpretation: Welcome to the suck: the first, second, third, and fifth are hopeless. And dig that crazy period-and-parentheses enumeration combo. But the fourth is what caught my eye. So the notices provision says that notices must be in writing to […]

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Two Issues Relating to Contract Obligations to Comply with the Law

Posted on September 27, 2018 by Ken Adams

Behold the following tweets, one by me considering the difference between saying comply with the law and comply with all laws, not to mention comply with all applicable laws, and an unexpected reply from Jason Morris, aka @RoundTableLaw: I don't understand how, if contracts to violate the law are invalid, this says anything at all. […]

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