I plucked from the SEC’s EDGAR system, largely at random, an asset purchase agreement filed earlier this month. It was drafted by a big law firm, and it contained, along with the usual dysfunction, some glitches that caught my eye. In particular, here are the different efforts (and endeavours) provisions it uses: I’m used to this sort of efforts mish-mash. … Read More
Yesterday I saw this tweet by Kaitlyn Fydenkevez: I have spent a large portion of my day fighting over whether a particular contract should refer to itself as “this Form” or “this form”. @AdamsDrafting, what have you done? What we’re seeing here is what happens when you eat the fruit of the contract-drafting tree of knowledge—you look around with new … Read More
In this 2014 post I express a preference for individual when referring a human being, and I haven’t shifted from that. But today I saw this post by Keith Paul Bishop. Here’s the relevant part: However, corporations may have a variety constituent parts, but they are quite literally bodies (corpus is the Latin word for a body). Thus, it may … Read More
In a conversation a few years ago with a BigLaw partner—a friend of MSCD—they recalled wistfully the first edition, which gave you relatively concise advice on the basics. Well, they’ll be even more wistful when they see MSCD5, because I’ve added greater detail. A good example is my treatment of our old friend efforts provisions. I’ve revised that chapter to … Read More
The other day I saw this in a confidentiality agreement: You could express the same concept using efforts: The Recipient shall use reasonable efforts to prevent disclosure or use of Confidential Information other than as authorized in this agreement. Or you could express it using neither degree of care nor efforts: The Recipient shall take precautions to prevent disclosure or … Read More
Every once in a while, I revisit a subject I made a hash of previously. Now is one of those times. I did this 2014 post on the setoff and offset. Because of an oversight on my part, the topic never made it into MSCD. I exhumed it for the fifth edition, and in the process realized that my 2014 … Read More
[Updated 10:30 p.m. ET, 9 May 2022: Thanks to Josh’s comment, I now have a different take on 24/7. It’s not limited to contracts—one hears 24/7 in all sorts of contexts. So I don’t think it’s jargon. Instead, it’s informal. I suspect that it’s more common in speech than in writing; that’s often the case with informal usages. But it’s … Read More
Selling services is very different from selling stuff, so contracts for one are different from contracts for the other. Yet drafters are prone to deploying in contacts for the sale of services concepts that make sense only for selling goods. One example of that is saying that services are being sold “as-is.” When you sell a car “as-is,” that means … Read More
[Updated 7:30 a.m. Eastern Time, 25 March 2022] Today in a session of my online course Drafting Clearer Contracts: Masterclass, we found ourselves discussing the phrase except to the extent prohibited by law (and its variants). It’s used to modify obligations. Isn’t it redundant?, someone asked. If you don’t perform the obligation because to do so would be against the … Read More
[This is my redo of this 20 November 2018 post. I decided I could do much better.] Let’s revisit this 2012 IPDraughts post, by Mark Anderson. It will allow us to consider some English contract-law terms of art. I’ll let you read Mark’s post for the background. The gist of it was that in a dispute over an allegedly defective … Read More
