Does the word actual have a role to play in contracts? Sure, when it’s used to draw a contrast with some other attribute: any actual or alleged damage their actual or potential adverse impact Or when a word arguably some other, non-actual meaning. Referring to actual knowledge is appropriate to avoid anyone suggesting that you’re referring to imputed knowledge. But … Read More
One reason I keep an eye on Twitter is that occasionally random bits of interesting drift by. For example, behold the following: Is this a confusion of effort standards? – Contractor will use its best efforts to complete the project in a commercially reasonable time — Andrew Share (@ContractClutter) December 3, 2014 First, the issue isn’t “best efforts” being combined with … Read More
Is there no end to the oddity of traditional contract legalese? Today we consider well and truly, which I was happily unaware of until I considered the recital of consideration featured in this post. Its use of well and truly caused me to hit EDGAR, where I found the following examples: This Agreement and each and all of the Obligations shall survive … Read More
During my public “Drafting Clearer Contracts” seminar in New York last Thursday, a participant mentioned the phrase to wit. Here’s what Black’s Law Dictionary has to say about it: to wit (too wit), adv. (14c) Archaic. That is to say; namely <the district attorney amended the complaint to include embezzlement, to wit, “stealing money that the company had entrusted to … Read More
Thanks to this item on Lexology by Kimarie Cheang of Holman Fenwick Willan, I learned that earlier this year, in the case of KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] SGCA 16 (here), the Singapore Court of Appeal had considered the implications of an obligation to use “all reasonable endeavours.” The court surveyed relevant caselaw in Singapore, England, and … Read More
A reader who identified himself as “a faithful reader from Northern Virginia” asked me about use of the word faithfully in contracts—yet another usage that had somehow escaped my scrutiny. In trawling for faithfully on the SEC’s EDGAR system, I saw that it’s used primarily in provisions stating an employee’s principal obligation under an employment agreement: Executive shall devote her best … Read More
This week I had the pleasure of giving two in-house “Drafting Clearer Contracts” seminars in Doha, Qatar. As often happens, I came away with with a new issue to explore. In particular, one of the participants asked me what I thought of use in contracts of the adverb continuously. He didn’t think much of it. And now I can say that … Read More
Don’t worry, this isn’t a discussion about where to put the apostrophe in attorneys’ fees. (But, yes, it goes after the s, to avoid getting into fights over whether it covers fees of just one attorney.) Instead, my beef is with the word attorney. Recently I saw the following in this “Gentleman Scholar” column: What’s the difference between a lawyer … Read More
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
