So we know the following about efforts provisions: It makes sense to use efforts to express an obligation if the party under the obligation doesn’t have complete control over achieving the desired result. Contract parties also use efforts obligations as an expedient alternative to stating precisely what a party under an obligation has to do to achieve the desired result. … Read More
In this comment, longtime reader Vance Koven suggests using Acme shall seek to instead of Acme shall use reasonable efforts to. He says that they’re equivalent, in that any court would apply a reasonableness standard to an obligation stated using seek. I understand Vance’s point. In fact, I’m going to go further. Why use the somewhat dated and literary seek? … Read More
Note use of the Latinism prima facie in following provisions, which I extracted from EDGAR without anaesthesia: The Finnvera Facility Agent shall maintain in its books at the Finnvera Facility Agency Branch a record of the Term Loan attesting as to the total of the Borrower’s indebtedness to the Tranche A Lenders. These accounts or registers shall constitute, in the … Read More
Not enough people write about contract usages, so I’m pleased when a new article arrives on the scene, particularly when it’s written by someone other than me. But one sign of a mature marketplace of ideas is when commentators build on the work of others, instead of treating a given topic as if they’re the first to examine it. With that in … Read More
Friends, I’m here to tell you that at least in contracts, affirmatively blows major chunks. It’s redolent of bureaucratic, jargony pseudoassertiveness. In each of the following examples, obtained by dynamite fishing in the EDGAR lagoon, affirmatively is, uh, affirmatively redundant: … an individual who becomes a Covered Employee shall be automatically enrolled in the Plan, and will make Participant Contributions at … Read More
The word provision is used to describe something in a contract, but without being specific—I don’t think you can say it refers to a sentence or to a section. You can use provision in a contract, usually in the plural. Here are two examples: any additional shares of Common Stock issued and issuable in connection with any anti-dilution provisions in … Read More
MSCD 8.56 suggests that you might want to use the phrase reasonable efforts as a defined term: Even though the phrase reasonable efforts doesn’t pose the same risk of confusion as best efforts, you might want to use it as a defined term. Doing so could assist a court and might help the parties better understand the implications of using reasonable efforts. And in … Read More
You might recall that in this September 2015 post I discuss how Bryan Garner has defied anyone to produce a case in which including but not limited to has been held to introduce an exhaustive listing—in other words, a case in which the list following including but not limited to has been held to restrict the meaning of the general class. In … Read More
Today I noticed the following tweet by @ronfriedmann: Example of bad lawyer contract drafting. Is answer #DoLessLaw or #DoMoreLaw? pic.twitter.com/pmifezzDZ0 — ronfriedmann (@ronfriedmann) January 15, 2016 The quoted contract provision—and yes, it’s craptastic—caused me to don my full-face respirator and scurry to EDGAR, where I found lotsa contracts that use between or among the parties and variants. Here’s one: This Agreement … Read More
Linguistics nerdiness follows. Don’t say I didn’t warn you. Consider the following, at MSCD 13.551–.52: Black’s Law Dictionary defines reasonable as follows: “Fair, proper, or moderate under the circumstances.” So determining whether someone has acted reasonably requires an objective inquiry—you consider the circumstances, not the actor’s intent. That’s the meaning of reasonable as it’s used in, for example, a reasonable fee and in … Read More
