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 English courts and accepted by … Read More
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 WILL RELY IN ENTERING INTO … Read More
[Updated 26 April 2023: See also this 3 May 2021 blog post about litigation in the Delaware Court of Chancery involving a consent-to-jurisdiction provision.] 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.) … Read More
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 provision in which nonparties are … Read More
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 to be congratulated for writing … Read More
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 pursuant to Tenn. Code Ann. … Read More
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 unenforceable. See Grafton Partners, L.P. … Read More
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 be effective, but elsewhere we’re … Read More
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. If what you are concerned … Read More
Readers tell me that businesspeople keep asking them to cut from contracts that which is unduly risk-averse or plain old unnecessary. Lawyers might be inclined to attribute that to businesspeople doing what they gotta do. In this view of things, lawyers are a bulwark against rank expediency. But there’s is a lot of fat in contracts, and in the coming … Read More
