Is absence of knowledge the same thing as knowledge of absence? Consider the following EDGARlicious example, followed by my variation: … the Company is unaware of any facts that would form a reasonable basis for any such claim. … to the Company’s knowledge, no facts exist that would form a reasonable basis for any such claim. And these alternatives: … Borrower is … Read More
In stating deadlines, one can use a vague standard backed up by a precise standard: Acme shall promptly, and in any event no later than 30 days after it learns of that breach, notify Widgetco of … Well, thanks to a tip from a participant at a recent in-house “Drafting Clearer Contracts” seminar I did in Palo Alto, I learned that some drafters … Read More
In this recent post I wrote about a Bryan Garner tweet on the subject of including but not limited to. Shortly after, Garner posted “LawProse Lesson #226” on the same subject. Since his post offers more detail than did his tweet, I thought I should check it out, but I found that it reflects his unhelpful approach to contract language. Let me … Read More
[Update: See also this follow-up blog post dated 14 September 2015.] Thanks to @traduccionjurid, yesterday I learned of the following tweet by Bryan Garner: Yes. Every contract should define "including" as meaning "including but not limited to." Then never use longer phr. https://t.co/Oyu44bcs8j — Bryan A. Garner (@BryanAGarner) August 20, 2015 Garner is in a class of his own as … Read More
I think it’s time I said something about right, title, and interest, no? You just know that right, title, and interest is a bit of inflated legal phrasing that serves only to make legal prose suitably sonorous. That the three elements are invariably kept in the same order is one sign that their function is incantatory and not substantive. But let’s look more … Read More
Recently I expressed to a group of patent lawyers my reluctance to use sole and exclusive in granting language to indicate that the licensor retains or doesn’t retain, respectively, the right to use the intellectual property. But on revisiting MSCD 13.606–10 and this 2012 post, I realized that I haven’t yet offered suitable alternatives. So here goes: In contracts on EDGAR, … Read More
To be consistent in your contract usages, you have to make decisions big and small. Here’s a small one: which to use, no later than or not later than? Behold what a Merriam-Webster “Ask the Editor” item (here) says: [T]here are differences in the way these two expressions are used. No later than is used more often than not later than, … Read More
It’s easy enough to find contracts that use amongst. A search on Westlaw’s version of EDGAR that was limited to items filed in the past three years yielded 4,774 hits. Here are four examples, with those apparently drafted in Commonwealth countries noted with an asterisk: … then the Maximum Indemnification Amount or the balance thereof shall be divided amongst the Office Holders at … Read More
I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by … Read More
Choices in contract drafting come in big and small packages. Today, let’s think small; let’s think breach. Count Noun or Mass Noun? Consider the following: It will not constitute [a breach] [breach] of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose … Both of the bracketed alternatives work. How so, you ask? Well, … Read More
