Via this IP Draughts post, we learn that another English court has held that if a set of statements of fact is introduced by warrants, those statements of fact do not also constitute representations giving rise to a claim for damages under the Misrepresentation Act 1967. Mark notes that this opinion is of limited interest, as it involves only a hearing of an application for summary … Read More
This week a reader asked me about including at least—yet another phrase I’d never thought about before. That phrase is unobjectionable when it’s used to express that a given set must including a minimum number, or minimum proportion, of something or other. Here are some random examples from EDGAR: … the Parties shall refer such dispute to the Chief Executive … Read More
Longtime readers will know that I make it a point periodically to prod the carcass that is the notion that different efforts standards impose obligations of different levels of onerousness. Well, it’s time to prod the carcass once more. This morning I used the phrase good reason. That led me to ponder the rhetorical function of good in that phrase—what’s the … Read More
Starting at 13.364, MSCD considers the elements that go into a definition of the defined term Knowledge. One element that discussion doesn’t include is the possibility of Knowledge being defined to include information that the person in question should have known. That’s knows as “constructive knowledge,” and it features in the following definitions exhumed from the potter’s field EDGAR. “Knowledge” … Read More
You recall my recent post about the foregoing (here)? Well, suppress your gag reflex and meet its close relatives, aforesaid and aforementioned. The word aforesaid comes in two flavors. First, it occurs in the phrase as aforesaid: Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the … Read More
The phrase the foregoing occurs frequently in contracts. I haven’t found a court opinion in which the meaning of the foregoing was at issue, but I don’t feel the need to wait for such an opinion to come along: because it could be unclear what the foregoing refers to, I recommend you not use the foregoing. Consider this: Sentence one sentence one sentence … Read More
Here’s an oddity: to the extent it is able to do so. (Variants include to the extent that it is able to do so, to the extent she/he is able to do so, to the extent they are able to do so, and to the extent [insert party name] is able to do so.) A search on EDGAR pulled up … Read More
Recently I encountered the word personnel in a contract. Hmm, how does personnel relate to employees? I asked my usual employment-law resources and they replied that personnel and employees mean the same thing, although personnel is perhaps the fancier option. But in my world, which I suspect is a narrower, more cramped, darker world than theirs, the sensible meaning attributed to words … Read More
The word workmanlike features in a lot of contracts on EDGAR, particularly loan agreements and landlord-tenant contracts. Here are three random examples: Borrower shall only use contractors … who generally have a good reputation for completing their work in a neat, prompt and workmanlike manner … All Tenant Improvements shall be done at Tenant’s full cost, expense and risk, shall comply … Read More
In MSCD, as well as in this 2007 post, I say that the phrase during the term of this agreement is usually redundant. I use the following example: During the term of this agreement, the [The] Company shall pay Jones an automobile expense allowance of $1,000 per month, grossed up for income tax purposes, and reimburse Jones for all gasoline … Read More
