Today I was reminded of the phrase every effort. I mention it in this 2004 article, but not in MSCD. Here’s an example from EDGAR: The Investment Manager represents that it shall make every effort to ensure that the Fund continuously qualifies as a Regulated Investment Company under Subchapter M of the Code or any successor provision. This phrase serves as a reminder of … Read More
I recently saw the following on Twitter: Do you think there are legalisms (terms of art) that cannot be replaced with plain language? We’re making a list: http://t.co/Hd0ZLidJK7 — Cheryl Stephens (@CherylStephens) June 20, 2013 It prompted me to think, Hey, that’s a great idea! Why don’t I ask my readers to help compile a list of contract terms of … Read More
Here’s what Garner’s Modern American Usage has to say about generally: generally has three basic meanings: (1) “disregarding insignificant exceptions” <the quality of the acting is generally very high>; (2) “in many ways” <he was the most generally qualified applicant>; and (3) “usually” <he generally leaves the office at five o’clock>. In contracts, the word generally appears in standard phrases … Read More
The problem with the word usually isn’t just that it’s vague. Instead, it’s that it exhibits the free-floating vagueness that we previously encountered in substantially (see this 2011 post)—vagueness uncoupled from a reasonable-person standard. How often does something have to occur for it to occur usually? Who knows. I’m not comfortable with that level of vagueness. A suitable fix might … Read More
At last Friday’s CLE session in Boise, I sat in on a lunchtime presentation by Ken Howell, of the law firm Hawley Troxell, on recent actions by the Idaho legislature that have a bearing on business. Obviously, I wasn’t in the target audience, but Ken caught my attention when he mentioned how, in connection with some tax legislation, the legislature … Read More
The other day @bradykrissesq posed the following question on Twitter: What is the legal significance of a contract requirement to “do all things”? — Brady Kriss (@bradykrissesq) April 30, 2013 Although it’s not the most crucial drafting issue, Brady, this one’s for you … Here are three instances of use of thing or things in contracts on EDGAR: … each … Read More
The earnest cliché ready, willing, and able occurred in 102 contracts filed on the SEC’s EDGAR system in the past year. That’s not a whole lot, but it’s not nothing either. Here are some examples: Borrower and Bank recognize and agree that the Origination Fee … is a material inducement for Bank to make the Loan and for having Bank ready, willing … Read More
Last month the Minnesota Supreme Court issued its opinion in In re Petition of S.G., 828 N.W.2d 118 (Minn. 2013) (PDF copy here). This opinion doesn’t involve a contract dispute. Instead, what caught my eye is what is, to my mind, a misunderstanding on the part of the judge writing the concurring opinion. Why bother pointing it out? Because it’s … Read More
Utmost? WTF! Here are some examples of use of utmost in contracts on EDGAR: … provided that the party so affected shall use its best efforts to avoid or remove the cause(s) of non-performance and observance with utmost dispatch. A Seller’s agent or subagent has the following affirmative obligations: (1) To the Seller. A fiduciary duty of utmost care, integrity, honesty, and loyalty in … Read More
I noted with interest Neal Goldfarb’s recent post on LAWnLinguistics about an amicus brief that he filed with the U.S. Supreme Court. His brief concerns the word because, and here’s the gist of the issue addressed: In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the … Read More
