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Adams on Contract Drafting

How to Express Not Complying with the Law

Posted on November 28, 2020 by Ken Adams

How do you express the concept of not complying with the law, but without expressing it in the negative? (In other words, without using not, or fails to, or the prefix non-, as in noncompliance.) Here are some verbs you could use: violates, breaches, contravenes, infringes, breaks. But which should you use? If it’s a […]

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An Example of Industry-Wide Elegant Variation: Ways of Saying Keep Confidential Information to Yourself

Posted on October 30, 2020 by Ken Adams

I’ve written previously about “elegant variation.” Here’s what I said in this 2015 post: Elegant variation—going out of your way to avoid using the same word or phrase twice—is never a good idea. It’s particularly unfortunate in contract drafting, in which tone plays no part. If you wish to convey the same meaning, use the […]

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A Case Study in Jargon: “The Principle of Least Privilege”

Posted on October 8, 2020 by Ken Adams

In my role as LegalSifter‘s chief content officer, I’ve been looking into provisions relating to information security. In the process, I’ve encountered some new jargon. (I use the word jargon as shorthand for unhelpful terms of art.) One example has stood out—the phrase principle of least privilege, sometimes truncated to just least privilege. Here’s an […]

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A User of “States” Instead of “Represents and Warrants” Reveals His Identity!

Posted on September 30, 2020 by Ken Adams

Of the recommendations in MSCD, none strikes terror in the hearts of traditionalists more than using states instead of represents and warrants, and statements of fact instead of representations and warranties. (Well, it’s probably a tie between that and—brace yourselves—dispensing with the defined term this Agreement. Gasp.) But my recommendation that you use states comes […]

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Termination for Cause Belongs Only in Employment Agreements

Posted on September 27, 2020 by Ken Adams

The concept of termination for cause occurs in employment agreements. That’s where it belongs—don’t put it in other kinds of contracts. Here’s an example of a definition of “Cause” from an employment agreement:   And here, from a manufacturing services agreement, is a section referring to termination for cause: In employment agreements, the concept of […]

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“Coterminous”

Posted on September 12, 2020 by Ken Adams

A few days ago I encountered the word coterminous for the first time … ever? Of course, it was in a contract. Here’s the Blacks Law Dictionary definition: coterminous (koh-tər-mə-nəs) adj. (18c) 1. (Of ideas or events) coextensive in time or meaning <Judge Smith’s tenure was coterminous with Judge Jasper’s>. Is coterminous a worthwhile term […]

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“Anniversary Month”

Posted on August 30, 2020 by Ken Adams

Thanks to a tip from @ZedtheGamer, I encountered the concept of anniversary month in this bit of convolution: Anniversary month evidently means the month in which the anniversary of a given event occurs. Here’s how it’s defined in an Illinois statute: “Anniversary month” means the month in which the anniversary of the limited liability company […]

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Through the Looking Glass: A BigLaw Analysis of Indemnification Terminology

Posted on August 14, 2020 by Ken Adams

Last weekend I indulged myself with this post, in which I observed, without surprise, that I’m hardly ever challenged in the marketplace of ideas. Well, if traditionalists aren’t challenging me, what do they contribute to the marketplace of ideas? I don’t go looking for such stuff, so for this blog post I’m relying on a […]

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Using Parentheses for Clarity

Posted on August 13, 2020 by Ken Adams

Generally, parentheses are of limited use in contracts. As MSCD says, “The limited and stylized prose of contracts isn’t the place for explanations and asides, so drafters should have no reason to use parentheses to serve that function.” But parentheses do serve a few specific functions. For example, MSCD says that “if you need to […]

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“As Between the Parties”? No Thanks

Posted on June 30, 2020 by Ken Adams

Yesterday someone mentioned to me the phrase as between the parties. I hadn’t ever looked at that phrase before, so off to EDGAR I went: If any of the provisions of this Amendment are inconsistent with or in conflict with any of the provisions of the Principal Agreement then, to the extent of any such […]

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