An article in Corporate Counsel by a BigLaw partner and associate (copy here) considers governing-law provisions. It suggests that using the following provision would increase the odds of a court’s holding that the provision applies to claims other than claims under the contract: This contract shall be governed and construed in accordance with the laws of [selected State], excluding that … Read More
At one of my recent European seminars I told the participants that I’m not in favor of the approach to document design that says that as soon as you have two distinct thoughts in a contract provision you should enumerate them and tabulate them. (For more about that, see this 2013 post (eighth paragraph) and this 2012 post.) But, said one of … Read More
The fog generated by traditional contract language is thick enough that I find myself periodically revisiting issues that I’ve tackled previously. In that vein, I’d now like to consider an odd opinion that reader @21law told me about. It involves those two chestnuts, the traditional recital of consideration and “successors and assigns” provisions. The opinion in question is Urban Sites of Chicago, … Read More
[Update: Go here for the June 15, 2013 post about my article It’s Time to Get Rid of the “Successors and Assigns” Provision.] The shortcomings of traditional contract language come in varying degrees of subtlety. At the unsubtle end of the spectrum is the “successors and assigns” provision. It’s utterly standard, but it’s also, um, problematic. I tackled the “successors … Read More
In this post, Brian Rogers explains how, as an experiment in crowdsourcing contract language, he has posted on Quora (here) his candidate for “the best anti-assignment provision in a contract ever.” He says that it’s “probably lifted” from Negotiating and Drafting Contract Boilerplate (Tina Stark ed. 2003) (NDCB). Here’s Brian’s provision: Neither party may assign any of its rights under … Read More
In this November 2011 post I introduced language of intention. It makes sense to use language of intention to articulate those aspects of a contract relationship that are subject to judicial scrutiny, meaning that the parties cannot establish them definitively in the contract. For the heck of it, here’s another example of language of intention, namely the basic version of … Read More
In RAA Management, LLC v. Savage Sports Holdings, Inc. (decided May 18, 2012; copy here), the Delaware Supreme Court held that no-reliance language included in a confidentiality agreement can serve to defeat claims for fraud brought by the recipient of confidential information. For more on this, go here for Francis Pileggi’s analysis and go here for Weil Gotshal’s analysis. I’m happy … Read More
[Updated 16 September 2020: See this February 2017 post for a new version of this provision.] [Updated April 23, 2013: See this October 2012 post for a revised version of this language.] [Updated 2:30 p.m. EST, March 7, 2011: To tweak the language, as discussed in the comments.] One exciting part of working on Koncision’s confidentiality agreement is that I’ve … Read More
[See also this post dated August 24, 2013, and this post dated August 20, 2013, which offers a new version.] [Updated January 3, 2012, to make the definition of “Force Majeure Event” read better; further updated January 9, 2012, to revise, experimentally, my proposed definition of “Force Majeure Event” to address the issue raised in the first paragraph of this … Read More
After chewing over the comments to this post on excluding consequential damages, I’m left with the following thoughts: I remain of the view that putting a cap on damages is the simplest and least contentious way to limit damages. And it can make excluding certain kinds of damages less relevant, or even entirely irrelevant. Whether a cap makes sense would … Read More
