[Updated 7:30 a.m. Eastern Time, 25 March 2022] Today in a session of my online course Drafting Clearer Contracts: Masterclass, we found ourselves discussing the phrase except to the extent prohibited by law (and its variants). It’s used to modify obligations. Isn’t it redundant?, someone asked. If you don’t perform the obligation because to do so would be against the … Read More
[This is my redo of this 20 November 2018 post. I decided I could do much better.] Let’s revisit this 2012 IPDraughts post, by Mark Anderson. It will allow us to consider some English contract-law terms of art. I’ll let you read Mark’s post for the background. The gist of it was that in a dispute over an allegedly defective … Read More
Courtesy of tipsters who DMed me on Twitter, I bring you Sutter Hill Management Corporation v. Mpire Capital Corporation, a case before the Supreme Court of British Columbia (here). Here’s the contract provision at issue: The Purchaser shall use commercially reasonable best efforts to satisfy the condition precedent set out in this Section 2.5 as soon as possible. Commercially reasonable … Read More
Today I put this out on Twitter: Has anyone encountered an instance of someone seeking to use "including" to add to a class something that categorically would not otherwise be part of the class? For example, "fruit, including carrots." — Ken Adams (@AdamsDrafting) January 6, 2022 This question came to mind because it’s one aspect of including pathology that I … Read More
[Updated 3 Jan. 2022] It could be gratifying when no one notices that I’ve screwed something up. No egg on my face! But instead, it’s a little disconcerting. No one cares! Or Serious egg on my face later, when I repeat the mistake in print! In the original version of this post (published in 2018), I misunderstood entirely the usage … Read More
A few months ago I noticed that the Georgetown Law Journal had published a student note entitled Is This Really The Best We Can Do? American Courts’ Irrational Efforts Clause Jurisprudence And How We Can Start To Fix It. It’s by Charles Thau, who has now graduated. Hi Charles, and congratulations on the note! My only reason for mentioning this … Read More
In this April 2017 blog post I unleashed on the world my chart showing the different components of efforts provisions. Well, it’s time to add another column to that baby, unfortunately. That’s because I followed up on something I buried in this September 2019 post on the LegalSifter blog, namely an instance of the phrase mediation efforts. That offered the … Read More
In this 2019 post I suggest that not much is to be gained by arguing which is better, English drafting or US drafting. But I did point out one noteworthy distinction: Even if you accept that a given kind of U.S. contract is likely to exhibit more dysfunction than an equivalent piece of English drafting, that’s perhaps offset by the … Read More
Friends, I recommend you run away from the movie SAS: Rise of the Black Swan. Really. Conserve your brain cells for a more worthwhile activity, like sniffing glue. But being a supporter of the arts, I inflicted it on myself a couple of months ago. For research purposes. As a result, I can report a deathless bit of dialogue at … Read More
Today I saw this tweet [Updated 2 Jan. 2022: The tweet that prompted Casey’s response was later deleted. It asked which was better, indemnification or indemnity]: The authority is @AdamsDrafting, as alwayshttps://t.co/g1ILOT4fht — D. Casey Flaherty (@DCaseyF) November 4, 2021 I was pleased to receive that endorsement from Casey—he has been the most astute observer of my stuff. (See his … Read More
