Yesterday I did this tweet, prompted by my rooting around in hotel agreements for LegalSifter: I love it that in leases, "quiet enjoyment" has nothing to do with quiet enjoyment and instead relates to possession not being disturbed by superior title. I love it even more that in hotel agreements, "quiet enjoyment" refers to guests […]
The English and “Notify”
Behold this random EDGAR fragment: The Participants shall procure that their representatives shall comply with all safety procedures notified to the Participants by the Operator which are implemented from time to time by the Operator whilst at the relevant location of Joint Operations. Yes, of course it’s crappy. But it’s English crappy! The “whilst” is […]
A Mystery of English Interpretation of “Endeavours” Provisions: Use of the Word “Probably”
I’m still in the weeds on efforts, so please indulge me. Consider the following (emphasis added): In UBH (Mechanical Services) Ltd v. Standard Life Assurance Co. T.L.R., 13 Nov. 1986 (Q.B.)., the court said that “the phrase ‘all reasonable endeavours’ is probably a middle position somewhere between the other two, implying something more than reasonable […]
“Very Best Efforts”
In twenty years of exploring efforts variations, somehow I never got around to considering very best efforts. *whacks self upside the head* Here are some examples from EDGAR: WHEREAS, the Company desires to provide the Executive with a bonus upon the occurrence of certain events in order to induce his continued service with the Company […]
“Subsisting”? No Thanks
Today’s mystery contracts word is subsisting. I searched on EDGAR for subsist in its various forms. Although it’s used sporadically in other contexts, the 40 or so examples I looked at overwhelmingly fall into two categories. One category is statements of fact to the effect that leases for real or personal property are subsisting. Here are […]
Promissory Conditions and Warranties: More Unhelpful English Terminology
This week Mark Anderson reminded us of this 2012 IPDraughts post. I’m pleased he did so, because it caused me to consider some unhelpful English terminology. I’ll let you read Mark’s post for the background. The gist of it was that in a dispute over an allegedly defective airplane, Bombardier sought to avoid application of […]
Some Thoughts on Akorn v. Fresenius
I recently mentioned in this post that my works were cited liberally in the Delaware Chancery Court’s high-profile opinion in Akorn, Inc. v. Fresenius Kabi AG (PDF here). I’ve now had occasion to look through the opinion; here are some thoughts. They reflect my interests: you can find no end of commentary if instead you’re interested […]
The Sixth Circuit’s Notions About How “Legally” Relates to Contracts
A reader told me about this Butler & Snow newsletter on the opinion of the Sixth Circuit Court of Appeals in Dark Horse Express, LLC v. Lancer Insurance Co., 733 F. App’x 826 (6th Cir. 2018) (PDF here). At issue is how the word legally relates to contracts. In 2014, Dark Horse contracted to transport […]
“Derogate”
Remember my post about abrogate? Well, now we have the second in my 46-post –gate series, derogate! (I’m joking—I hadn’t planned to explore two –gate words in quick succession. But as we’ll see, the two words are linked.) Derogate has two meanings. When used as a transitive verb (in other words, if it makes sense […]
Revisiting “For Clarity” and “For the Avoidance of Doubt”
Last week I noticed this item on the website of the Licensing Executives Society (U.S.A. and Canada). Entitled Clarifying Provisions Avoid Ambiguity in Patent License Agreement, it discusses contract provisions at issue in the opinion of the Delaware U.S. District Court in TQ Delta, LLC v. Adtran, Inc. (PDF here). (The court subsequently reconsidered its opinion, but not in […]
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