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
Long ago I examined the phrase time is of the essence and found it wanting. MSCD has the definitive account, but there’s also this 2009 blog post. But at a recent seminar, someone reminded me that the phrase of the essence is used not only in time is of the essence. That’s something that MSCD 13.687–88 refers to: A fixture of contract language is the … Read More
Anyone, anyone? The online periodical Business Law Today will soon unleash on an unsuspecting world an article I co-authored. It includes the following snippet of contract language: “anyone commences an involuntary case against the Company …” Does anyone apply only to individuals? Or does it also apply to entities? In other words, we’re in effect faced with the question raised in the political … Read More
MSCD explains as follows how using the word notwithstanding in a contract can create problems: For one thing, notwithstanding operates remotely on the provisions it trumps; readers could accept at face value a given contract provision, unaware that it is undercut by a notwithstanding contained in a different provision. Furthermore, although a notwithstanding clause that refers to a particular section … Read More
The answer to the question in the title is obviously, “What the … !” But asking that question provides me with another stick with which to beat the notion, expressed in English caselaw (see this post) and newsletters put out by English law firms, that all reasonable endeavours represents a more exacting standard than does reasonable endeavours. In terms of semantics, … Read More
OK, so we’re all agreed that best efforts promises more than it can deliver—to avoid confusion and avoid wasting time in negotiation theater, use just reasonable efforts. You don’t agree? Oh, I think you’ve come to the wrong place; go here for the Flat Earth Society. Relax! I’m joking. To show you that I feel your pain, I’ll try once … Read More
In this post from a few days ago, you’ll see that some tenacious readers and I have been going at it hammer and tongs, debating what (if anything) to use instead of with respect to in various contexts. Everyone seems to agree that in most contexts one can be more economical than with respect to. So our debate has focused … Read More
After last Thursday’s “Drafting Clearer Contracts” seminar in Dallas for West LegalEdcenter, I had the pleasure of having dinner with longtime reader and commenter Chris Lemens. He asked me about with respect to. This one’s for you, Chris. According to Garner’s Modern American Usage, “The phrases with respect to and in respect of are usually best replaced by single prepositions.” … Read More
