Greetings from South Bend, Indiana! I’m in the middle of teaching an “intensive” three-week course on contract drafting at Notre Dame Law School. Given that we’re cramming one semester’s worth of work into the course, for me it’s living up to its name, even with a small group of students—I feel like I’ll need a vacation when I’m done. As for … Read More
I’ve previously considered reasonableness and good faith. (See MSCD 13.557 and this 2011 post.) Now it’s time to think about fairness. Just to set the scene, here’s how Black’s Law Dictionary (9th ed. 2009) defines fair: fair, adj. (bef. 12c) 1. Impartial; just; equitable; disinterested <everyone thought that Judge Jones was fair>. 2. Free of bias or prejudice <in jury … Read More
Updated August 9, 2014: Comments by Harley Meyer have prompted me to update this post. Harley makes a couple of points. He focuses on the notion that courts will allow for cure, regardless of what the contract says. I haven’t yet researched this extensively, but I’ve found enough to suggest that drafters shouldn’t assume that that’s the case. For example, Robert … Read More
Consider the verb tend. It means “regularly or frequently behave in a particular way or have a certain characteristic; be liable to possess or display (a particular characteristic).” Well, don’t use tend in contract drafting. In contracts, something is relevant if it happens, if it might happen, if it’s likely to happen, or if it doesn’t happen. You could also say … Read More
Do I really have to say it? OK, here goes: inure (meaning “to take effect; to come into use”) is lame. You might know inure from “successors and assigns” provisions: This agreement is binding upon, and inures the benefit of, the parties and their respective permitted successors and assigns. But since we’ve happily consigned the “successors and assigns” provision to oblivion (see … Read More
Because he happened to cite one of my posts on the subject, I came across this post on liquidated damages by Virginia litigator Lee Berlik. It discusses a recent Virginia case regarding a contract provision that allowed a party to choose between liquidated damages or some other, greater remedy. Here’s the language at issue: If the Seller does not elect to accept … Read More
Michael Fleming, ur-commenter on this blog, sent me the following extract from a Canadian lease, asking me what I thought of “resiliate”: Should the Tenant default on any of the above-mentioned monthly payments at the date when due the balance of the present lease will become due, entirely, without prejudice to the right of the Landlord to resiliate the present … Read More
The last time I had anything to say about provided that on this blog was in this 2008 post. Well, today I was woken from my provided that slumber by this post, entitled “Provisos in Contracts,” on the Paper Software blog. Paper Software is developer of Turner, a Mac-only software with the tagline “Smarter, simpler contract drafting tools.” The guy … Read More
The inimitable A. Wright Burke, M. Phil., added to this recent post on the word anyone the following comment (here): People are entities! There are natural entities (“individuals”) and artificial entities (e.g., corporations, khanates). People are “legal entities,” too. So the question is whether “anyone” refers only to natural persons or also to artificial persons. … If “anyone” is thought risky, “any … Read More
I was pleased that Mack Sperling, who maintains the blog North Carolina Business Litigation Report, told me about this post on his blog. It discusses a recent North Carolina case that turns on what it means to enter into a contract “with” someone. Here are the relevant facts, as reported by Mack: HCIM, one of the Defendants, had acquired a … Read More
