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 […]
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 […]
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 […]
Thoughts on Delivery “By Hand”
In this 2012 blog post I explain why the phrase personal delivery is confusing. My conclusion: So the moral of this case is, Never say in a contract “deliver X personally,” “by personal delivery,” “personal delivery,” or any variant. But in this earlier post on the subject, I say this: Instead, what the phrase “personal […]
Jurisdiction Provisions, Part 4: Using Convenient-Forum Provisions Instead of No-Objecting-to-Inconvenient-Forum Provisions
After doing these three posts about stuff you find in jurisdiction provisions, I have just one more topic to discuss, at least for now—namely this kind of thing: Each party hereby waives [or agrees not to assert] any objection that those courts represent an inconvenient forum [or inconvenient venue]. I’ve decided to call such provisions […]
Jurisdiction Provisions, Part 3: Don’t Use the Words “Jurisdiction” and “Venue” in Specifying Which Courts Would Resolve Disputes
As you will have noticed from this blog post and this blog post, I’ve been contemplating contract provisions that seek to specify which courts would resolve disputes between the parties. In the process, I’ve observed that people appear uncertain about how concepts of venue and jurisdiction relate to this issue. Inconsistent Terminology Some provisions use […]
Jurisdiction Provisions, Part 2: Stop Using No-Objecting-to-Jurisdiction Provisions!
For LegalSifter, I’ve been taking a closer look at jurisdiction provisions. I’ve decided that they represent a dose of concentrated fucked-upness on a par with governing-law provisions. The Context The first shoe dropped last year, in my post Stop Using Consent-to-Jurisdiction Provisions! It says you should stop using this sort of thing: Each party hereby […]
Giving Notice by Email Only? I’d Rather Not
In notices provisions in contracts, you say what’s required to give valid notice. Among other things, that involves specifying what one or more methods have to be used. The standard alternatives are giving notice by hand, by some form of mail, by FedEx or some equivalent, or by email. Recently I’ve considered providing for email […]
Force Majeure in the Time of Coronavirus: The Underlying Concepts and How to Express Them Clearly
A force majeure provision in a contract expresses that if something sufficiently bad happens that isn’t under a party’s control, it would be appropriate to suspend performance. Given the coronavirus pandemic, a handful of readers suggested that I write something about force majeure provisions. Initially I demurred—I thought I’d already had my say in previous […]
Exploring the Standard of Care in Services Agreements
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 […]