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 […]
“Abrogate”
Friends, today’s word is abrogate. If you use it in contracts, you need to get over yourself. Here’s how Black’s Law Dictionary defines it: abrogate (ab-rə-gayt) vb. (16c) To abolish (a law or custom) by formal or authoritative action; to annul or repeal. I rummaged around on Edgar to see what use people have had for abrogate, and […]
The Em-Dash in Contracts? Nah
You know the em-dash—it’s what divides the two parts of this sentence. According to Garner’s Modern English Usage (GMEU), “The em-dash is perhaps the most underused punctuation mark in American writing.” But in my experience, once people start using the em-dash, they quickly start using it promiscuously. That’s the case with me, with one exception: […]
“On a Best-Efforts Basis”
“What!,” I hear you say. “More on efforts! You cannot be serious! Yes, more on efforts, because I’m determined to explore every nook and cranny of the f*cked-up world that is efforts provisions in traditional contract drafting. And today’s topic is the phrase on a best-efforts basis. A best-efforts offering is a kind of securities […]
Another Guarantee Issue: Waiver of Presentment
As you might have guessed from my previous two posts, I’m working on a guarantee. Unsurprisingly, contains a sentence that refers to waiver of presentment. I knew this day was coming, and I’ve long been prepared for it. I reached for Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 197 (2d ed. […]
“Absolutely, Unconditionally, and Irrevocably Guarantees”
In guarantees for payment of debt, the key language of performance—hereby guarantees—is usually supplemented with one or more of the following adverbs: absolutely, unconditionally, and irrevocably. I recommend you omit all three. I suspect that many who work with guarantees would find that a shocking notion. But to insist on retaining some combination of the […]
Revisiting “Guaranty” or “Guarantee”
Way back in 2006, I considered in this post the distinction between guaranty and guarantee used as a noun. That analysis still applies, and it’s reflected in MSCD. To summarize, the noun guarantee is used to express a meaning analogous to warranty. By contrast, when referring to a promise to pay the debt of another, […]
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