While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following: Company will not, and will not knowingly or negligently allow any third party to [do various things]. But does it make sense to impose an obligation on someone not to act negligently? Is that equivalent to imposing an obligation … Read More
The word actively can join the long list of useless—or at least mostly useless—words used on contracts. In particular, it often seems that actively is in effect used just to mean the opposite of passively. That’s redundant, given that actively is always used with a verb that connotes action. Consider the following examples from EDGAR: Liens for taxes not yet delinquent … Read More
Earlier this month I unleashed the following tweet: Love it when contracts exclude both "direct" and "indirect" damages (usually with a bunch of other stuff). That excludes ALL damages! — Ken Adams (@AdamsDrafting) January 10, 2014 So I noted with interest the opinion of the Texas Court of Appeals in Innovate Technology Solutions, L.P. v. Youngsoft, Inc., 05-12-00658-CV, 2013 WL 6074126 … Read More
Sometimes it’s left to me to address the big questions. Consider the defined terms SoW (used to meaning a statement of work issued under a particular contract) and MAC (used to mean a material adverse change in something or other). (MSCD 9.73 recommends that you use Material Adverse Change as the defined term, not MAC, but MAC provides a convenient … Read More
Here’s an odd little usage: the date notified. I first saw it in section 1.1.3.2 of the FIDIC contract I discussed in this post (emphasis added): “Commencement Date” means the date notified under Sub-Clause 8.1. Here are some other examples from that den of iniquity, the SEC’s EDGAR system: Each Lender shall make available to the applicable Issuing Bank an … Read More
On Tweetdeck, I have a column for tweets that contain the words “contract” and “drafting.” From the tweets that show up there, every so often I learn about stuff that I might otherwise have missed. For example, today I saw the following: New Alert: First Circuit's lesson on necessity of precision in loan contract drafting http://t.co/OGhw94XOPB — Tim Durken (@TDurken) … Read More
I bring you two items of interest regarding recovery of attorneys’ fees. One is this post by Brian Rogers, aka @theContractsGuy. The message? If for purposes of a contract governed by Missouri law you want to recover attorneys’ fees, it’s not enough to say “all costs”—you have to mention attorneys’ fees too, presumably by saying “all costs, including attorneys’ fees.” … Read More
A modest suggestion: When you’re dealing with real estate, eliminated demised from your contracts. For purposes of real-estate contracts, demise means “to convey by will or lease.” There’s always a simpler word. The following example is from the contract providing for Jeff Bezos’s acquisition of the Washington Post (discussed in this post): The Seller shall lease to the Purchaser sufficient … Read More
I’ve had occasion to consider the dispute between Cooper Tyre and Apollo Tyres, as the Wall Street Journal asked me about the efforts language at issue. That’s something that Steven Davidoff considered in this recent item in the New York Times Dealbook: Section 6.3 of the acquisition agreement requires that Apollo “in the most expeditious manner possible” use its “reasonable … Read More
Hot on the heels of last month’s post about a case involving notwithstanding (here) comes another one, courtesy of Peter Mahler, in the form of this post on his New York Business Divorce blog. By my reckoning, two notwithstanding cases within a month of each other constitutes a bonanza. What makes the case Peter discusses particularly noteworthy is that it … Read More
