Selected Usages

Today I revisited my 2016 post on reasonable and hypallage (here). In trying to make sense of that post, I revisited hypallage generally. Be warned: that’s what this post is about. In the Ben Zimmer item (here) I link to in the previous post, here’s how Ben describes hypallage: Hypallage (pronounced hy-PAL-uh-jee, rhyming with analogy) is a literary device that … Read More

Yesterday I saw this article on JDSupra. It’s entitled Merger and Purchase Agreements Governed by Maryland Law: “Best Efforts”, and it’s by Scott Wilson of the law firm Miles & Stockbridge. Consider the following extract: The most commonly utilized terms are “best efforts,” “reasonable best efforts” and “commercially reasonable efforts.” Practitioners understand these terms on a sliding scale with “best efforts” … Read More

Today I encountered use of ought in the Uniform Commercial Code, so that sent me scurrying to EDGAR, where I found 143 contracts filed in the past year that use ought. Garner’s Modern English Usage says the following about ought: Ought should be reserved for expressions of necessity, duty, or obligation; should, the slightly weaker but more usual word, especially … Read More

Behold the following extracts from the outhouse EDGAR, each using the word joinder: … the Company shall cause each such Permitted Subsidiary to become party to the Guaranty by executing a joinder to the Guaranty reasonably satisfactory in form and substance to the Required Holders. On November 11, 2016, the Board authorized this Agreement , contingent upon its execution and … Read More

[Overhauled 8:40 p.m. EST on 12 November 2016, thanks to input from Neal Whitman on Twitter.] It’s time to pick over the carcass of the “Magic Circle” extract that I dissect in this post. Consider the following with respect to the word Closing in that extract and in my version of it: The original version: … under a new contract of … Read More

In the course of discussions in London, it became clear to me that I have few supporters in suggesting that drawing a distinction between endeavours standards—the US equivalent is efforts—is an invitation to confusion. The prevailing view is that of course best endeavours imposes a more exacting standard than does reasonable endeavours. I’m happily sticking to my guns, for two reasons. … Read More

One can never have enough on efforts, it seems. Here are three notes on efforts. *** First, thanks to a reader tip I learned of this post on Sheppard Mullin’s Corporate & Securities Law Blog, entitled What Are “Commercially Reasonable Efforts” in M&A Transactions? Some observations. The post says as follows: New York courts have suggested that when parties fail to … Read More

The phrase fails to (and its variants) is utterly standard in contracts, but you could always use instead does not (and its variants). Some grubby examples from EDGAR: The Indemnifying Party shall not be relieved of its obligations to indemnify the Indemnified Party with respect to such claim if the Indemnified Party fails to [read does not] timely deliver the Indemnity … Read More