Selected Provisions

I’ve dabbled in governing-law provisions. Here are the relevant blog posts from my list of stuff I’ve written on boilerplate (here): Blog post, Including Federal Law in Governing-Law Provisions (4 June 2021) Blog post, Revisiting Governing-Law Provisions (1 Aug. 2019) Blog post, Simplifying Governing-Law Provisions, Part 3 (“Governs” and the Alternatives) (15 July 2015) Blog post, Simplifying Governing-Law Provisions, Part 2 (Renvoi!) (13 July 2015) Blog post, Simplifying Governing-Law … Read More

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

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

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