I’ve written occasionally about principles of interpretation (also referred to as “canons of construction”) used by courts. In this post I say that “they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent.” I said pretty much the same thing in this recent tweet: People use the phrase "canon of construction" because it […]
The Pros and Cons of No-Dispute Provisions
In this comment to a recent post, longtime reader Chris Lemens mentions what he refers to as “no-contest” provisions. That sent me scurrying to the Bantar Gebang trash dump EDGAR, where I found the following examples (emphasis added): Each party hereto agrees and covenants that it will not contest the validity or enforceability of any […]
Licenses and Bankruptcy: My Version of a Section 365(n) Provision
Today I spent some time considering section 365(n) of the U.S. Bankruptcy Code. If in bankruptcy the debtor or trustee rejects a license, under section 365(n) a licensee can elect to retain its rights to the licensed intellectual property. For more on that, see this post by Bob Eisenbach on his In the (Red) blog. […]
Mark Anderson on Insurance Provisions in Contracts
A standard feature of commercial contracts is a section—usually entitled “Insurance”—that specifies the insurance coverage that one or more parties are required to maintain. I’m regularly surprised at how contract parties are willing to throw something together without input from insurers. For an antidote to that sort of improvised approach, see this post by Mark Anderson on […]
Use of “Paid-Up” and “Royalty-Free” in Granting Language
Yesterday I revisited in this post use of sole and exclusive in granting language in a license agreement. Well, we’re not done, because yesterday I saw the following in a contract: Acme hereby grants Widgetco an irrevocable, worldwide, paid up, royalty-free, exclusive license … That caused me to wonder about paid-up (it’s a phrasal adjective, […]
Simplifying Governing-Law Provisions, Part 3 (“Governs” and the Alternatives)
To accompany my previous two posts (here and here) on issues relating to language used in governing-law provisions, here’s another: Do you say that the law in question governs the contract or, alternatively, that the contract is governed by the law in question? (This is a context where the passive voice is largely harmless.) Or do […]
Simplifying Governing-Law Provisions, Part 2 (Renvoi!)
[Updated July 13, 2015: In my original post, I proposed not bothering to say in a governing-law provision that the court is to consider just the substantive law of the jurisdiction in question, instead of using choice-of-law principles as a basis for deciding to apply a different law. That was my opening position, pending further research. Well, […]
Simplifying Governing-Law Provisions, Part 1
Consider these two alternatives: The laws of the State of Ohio govern … Ohio law governs … Any reason not to opt for the second alternative? It’s simpler, in that (1) Ohio acts as an adjective instead of forming part of a prepositional phrase and (2) it dispenses with State of. How about saying New York […]
[It’s Back!] My Version of an “Irreparable Harm” Provision
[This post was originally published May 4, 2013. I’m republishing it because a client, of all people, mentioned it to me—I had completely forgotten about it. On revisiting the original post, I decided that it was worth upgrading my new language from thought piece to something I use in my contracts. So I revisited Vinny […]
Do We Care About Default Remedies?
You might recall that one of the rationales for use of the phrase represents and warrants is that it allows you to specify what remedies are available, namely an action under the contract for breach of warranty, a tort action for misrepresentation, or both. In an as-yet-unpublished article, I demonstrate that using represents or warrants or both doesn’t make […]