Selected Usages

Using “Including” for Stuff That Isn’t Part of the Class

Today I put this out on Twitter: Has anyone encountered an instance of someone seeking to use "including" to add to a class something that categorically would not otherwise be part of the class? For example, "fruit, including carrots." — Ken Adams (@AdamsDrafting) January 6, 2022 This question came to mind because it’s one aspect of including pathology that I … Read More

“Shall Not Be Concerned To See To”

[Updated 3 Jan. 2022] It could be gratifying when no one notices that I’ve screwed something up. No egg on my face! But instead, it’s a little disconcerting. No one cares! Or Serious egg on my face later, when I repeat the mistake in print! In the original version of this post (published in 2018), I misunderstood entirely the usage … Read More

Be Careful About This When You Negotiate “Efforts” Provisions

A few months ago I noticed that the Georgetown Law Journal had published a student note entitled Is This Really The Best We Can Do? American Courts’ Irrational Efforts Clause Jurisprudence And How We Can Start To Fix It. It’s by Charles Thau, who has now graduated. Hi Charles, and congratulations on the note! My only reason for mentioning this … Read More

Please Welcome Another Component to the “Efforts” Provision Family

In this April 2017 blog post I unleashed on the world my chart showing the different components of efforts provisions. Well, it’s time to add another column to that baby, unfortunately. That’s because I followed up on something I buried in this September 2019 post on the LegalSifter blog, namely an instance of the phrase mediation efforts. That offered the … Read More

More English “Endeavours” Gibberish

In this 2019 post I suggest that not much is to be gained by arguing which is better, English drafting or US drafting. But I did point out one noteworthy distinction: Even if you accept that a given kind of U.S. contract is likely to exhibit more dysfunction than an equivalent piece of English drafting, that’s perhaps offset by the … Read More

Revisiting “In the Public Domain”

Friends, I recommend you run away from the movie SAS: Rise of the Black Swan. Really. Conserve your brain cells for a more worthwhile activity, like sniffing glue. But being a supporter of the arts, I inflicted it on myself a couple of months ago. For research purposes. As a result, I can report a deathless bit of dialogue at … Read More

“Indemnification” or “Indemnity”?

Today I saw this tweet [Updated 2 Jan. 2022: The tweet that prompted Casey’s response was later deleted. It asked which was better, indemnification or indemnity]: The authority is @AdamsDrafting, as always — D. Casey Flaherty (@DCaseyF) November 4, 2021 I was pleased to receive that endorsement from Casey—he has been the most astute observer of my stuff. (See his … Read More

Back to “Efforts,” Part 3: Other Outlets for Delexicalization Deniers

In my 2019 article, I explain that in the phrase best efforts, the word best has been “delexicalized”—instead of expressing its dictionary definition of “exceeding all others,” in this context it’s used as a rhetorical flourish. Other phrases that feature the delexicalized best are in the best interest(s) of Acme and to the best of Acme’s knowledge (and variants). I’ve suspected … Read More

Back to “Efforts,” Part 2: Relexicalizing “Best”

Warning: this post is for hard-core efforts fans only. As part of my frenzy of rooting around on EDGAR yesterday looking for efforts anomalies, I saw this: The phrase best efforts possible is an oddity. It and the variant best possible efforts occur only a handful of times on EDGAR, mostly in contracts drafted in countries where English isn’t the … Read More

Back to “Efforts,” Part 1: Dreaming Up Other Hierarchies

Let’s start with what we know: The notion of a hierarchy of efforts standards is nonsense. It’s inconsistent with English usage, semantics, and how contracts work. For more, see my 2019 law review article. (According to the Delaware Chancery Court, it’s “The most thorough analytical treatment of efforts clauses.”) But some drafters are so taken by the notion of a … Read More