Today I glanced at this Littler newsletter, which discusses a case involving a dispute over forum selection. But what caught my eye wasn’t the dispute itself. It was the language at issue: This Agreement is subject to the provisions of the Labor Law No. (58) for the year 1970 Gregorian and its amendments and the law on Social Solidarity No. … 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 implications of using either or both of the phrases arising out of and relating to is a topic of perennial interest. (For example, see this post, this post, and this post.) So today an article in Corporate Counsel entitled 3 Pitfalls in Contractual Choice-of-Law Provisions (here) caught my eye. It’s by two partners and an associate at McDermott Will & … Read More
Last week I read an organization’s internal analysis of efforts provisions, based on a handful of articles on the subject. According to this analysis, those articles suggest that Delaware courts have held that best efforts represents a more exacting standard that does reasonable efforts. I wasn’t aware of that. MSCD chapter 8 contains what I like to think is the clearest and … Read More
In case anyone is interested, Dan Schwartz has posted on the Connecticut Employment Law Blog my guest post on that old chestnut, the phrase moral turpitude. Go here to read it.
[Updated September 26, 2013] Last week was a quiet one, at least in terms of my online activities, as I spent most of it in Florida, where I gave two “Drafting Clearer Contracts” seminars for a company. There was a give-and-take during the seminars. I particularly like it when someone at a seminar spots a nuance that I’ve had at … Read More
With the U.S. Supreme Court’s recent holding on the Defense of Marriage Act, my thoughts turned to use in contracts of the words husband, wife, and spouse. But I wasn’t about to tackle that on my lonesome, no siree. Instead, I asked Dan Schwatz—he of the Connecticut Employment Law Blog—for his thoughts. My opening question for Dan was whether use … Read More
Given my recent post on German speakers and will (here), I was intrigued to have a participant at yesterday’s “Drafting Clearer Contracts” seminar in Boston ask me why Germans are so eager to use the verb guarantee in contracts. I’m not sure what use of guarantee that participant was referring to. Guarantees plus noun or guarantees that plus verb? (For … Read More
As you’ll note from my recent blog posts, I’ve been having a busy time in the marketplace of ideas. Here’s another installment, prompted by a reader inquiry: Had I seen this article in Canadian M&A Perspectives? And what did I think of it? Corporate Counsel Article Well, let’s start by looking at this article in Corporate Counsel, which the Canadian … Read More
In this comment, reader MLB asks, “What’s your thought on the following phrase: ‘related to, but not limited to’ in a contract?” My response: WTF? A search on EDGAR found only 49 contracts that use the phrase, and perhaps half of them represent multiple instances of contracts based on the same template. So it’s a rarity—thankfully so, as I don’t … Read More
