In this post you can see the most recent version of my force majeure language. (Excuse the blood, sweat, and tears!) But one change the current version doesn’t reflect is something that Chris Lemens and A. Wright Burke both requested—that I get rid of the phrase force majeure. Here’s what Chris said in this comment: I’m highly prejudiced against law-French, … Read More
Recently I encountered cognizant in a contract. It’s a foppish word meaning “knowledgeable of something, especially through personal experience.” It’s not that common in contracts, but it’s not an utter rarity either—it’s in a few dozen contracts filed on EDGAR in the past year. Below is an example of cognizant used in a contract to convey the established meaning; I’d use … Read More
I’ve decided that use of represents and warrants is the litmus test in the battle for clear contract language. That’s why I’m always game to chime in on the subject. I had an opportunity to do so today, by posting this comment to an article by Drew Hasselback on the website of the Financial Post, a section of the Canadian publication … Read More
You remember my post asking for readers to suggest terms of art that can’t be replaced with something clearer (here)? I offer with prejudice. Here’s how Black’s Law Dictionary defines the phrase: with prejudice, adv. With loss of all rights; in a way that finally disposes of a party’s claim and bars any future action on that claim <dismissed with prejudice>. See dismissal with prejudice under DISMISSAL (1). It’s routine … Read More
I sometimes get from unexpected quarters ideas for new bits of contract language for to me ponder. Last week, my web designer, the inestimable Selene Bowlby of iDesign Studios, asked me about the phrase “this agreement contemplates,” which she had seen in a contract for web-design services. An astronomer contemplates the universe. An existentialist contemplates being and nothingness. I contemplate … Read More
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
