Today I saw another way to make it clear that you want a party to waive the implied duty of good faith: Shipper, at its sole discretion and not subject to a reasonableness standard, may determine whether the goods may be salvaged, and if salvageable, the value of such salvage. For reasons I explain in […]
Don’t Use “Both … And” As a Linking Expression
In various ways, the word both comes in handy in contracts. It’s used to express universal quantification in contracts with two parties: No amendment to this Agreement shall be valid unless made in writing and executed by both parties hereto. And you can use both to make it clear whether you’re referring to one or […]
The Redundant “Only” in Language of Obligation
Be on the lookout for the redundant only in language of obligation. Consider this: The Tenant may move furniture, fixtures, and equipment into and out of the Premises [only] during nonbusiness hours unless Landlord gives approval otherwise. [Prompted by D.C.’s comment I moved only, but that’s unrelated to the topic of this post.] Omitting only […]
Now Available: My Law-Review Article “Interpreting and Drafting ‘Efforts’ Provisions: From Unreason to Reason”
The summer 2019 issue of The Business Lawyer—the law review published by the Business Law Section of the ABA—contains my article Interpreting and Drafting Efforts Provisions: From Unreason to Reason. Go here for a PDF. No one has ever offered an even halfway serious attempt to explain a distinction between different efforts (or endeavours) provisions, […]
Another Kind of “Including” Ambiguity
I noted with interest an article entitled “Including Without Limitation” (in this issue of The Transactional Lawyer), by Stephen L. Sepinuck of Gonzaga University School of Law. I’ll discuss later in this post the part about including without limitation. But let’s start with what is for me the more interesting part—the last two columns, in […]
Two “Similarly” Glitches
Yes, similarly and similar are vague. Vague can lead to fights, so you have to be careful about vague. (See this 2018 post about a vagueness fight over similar.) But that’s not what post is about. Instead, it’s about two similarly glitches. Consider this use of similarly: In case of any reclassification or reorganization … […]
Mutating Meanings of Terms of Art
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 […]
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