Selected Usages

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

A participant at my recent Canberra seminar made me aware of “self-deleting” contract provisions. I gather that it’s a standard notion in government contracts. Here’s an example: CLAUSES MADE INAPPLICABLE BY THE TYPE OF ORDER OR CONTRACT ARE  SELF-DELETING. And another: THE FOLLOWING CLAUSES ARE INCORPORATED BY REFERENCE AND ARE SELF-DELETING IF NOT APPLICABLE: “Self-deleting” would seem to be something … Read More

Reader @mpietruczak told me about this newsletter by Duane Morris. It’s about the decision of the U.S. District Court for the Northern District of California in Powertech Tech. v. Tessera, Inc. (PDF copy here). The court interpreted the phrase “non-breaching party” in a way that’s inconsistent with how I’ve used it. The issue was whether under the contract at issue one party could … Read More

Updated 5 July 2022: By all that is holy, ignore this post and instead consult this 2022 post! Today I encountered in a contract the following use of offset: Unless it has notified Company otherwise, the Vendor shall offset the Search Fees payable by the Company under this Agreement against the Vendor’s payment obligations to Company under this agreement. To asses the … Read More

Today I encountered in a contract the following use of revoke: The Vendor may revoke this license at any time upon notice to the Company. For purposes of a license granted by contract, I recommend using instead terminate. Here’s the relevant part of the Black’s Law Dictionary definition of revocation: 1. An annulment, cancellation, or reversal, usu. of an act … Read More