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
The word actually doesn’t have many friends. Commentators think it’s overused; see this article by Claire Carusillo in the New Republic and this article by Heidi Stevens in the Chicago Tribune. But in contracts, the problem with actually goes beyond overuse. In general discourse, actually, meaning “in fact,” signals difference of opinion or disagreement over facts. Contracts aren’t for debating, so as a … Read More
There’s always something that needs fixing. Yesterday, I was inclined to carve on my forehead, in mirror-script, “Stop using limitation instead of limit!” Consider the following from Garner’s Modern American Usage: limit; limitation. A limit is whatever marks an end to something, as in city limits or speed limit. A limitation is the extent of one’s capacity or a constraint that … Read More
I received the following inquiry from longtime reader Vance Koven: I’ve been trying to find someplace in MSCD or your blog where you address the couplet “in and to,” which usually dribbles out after “right, title and interest” in referring to, say, a claim to or a license of intellectual property. Came up empty, yet I was sure it was … Read More
