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
MSCD 17.16 deals with the phrase to the extent that. It makes the simple point that although to the extent that is appropriate when the degree to which a provision applies depends on some variable, drafters often use to the extent that when if would be more appropriate. Here are three examples: To the extent that [read If] an Award is intended … Read More
In contracts, use of the word suffer comes in two flavors, silly and annoying. Silly First, silly—the intransitive use of suffer. When use to mean “to submit to or be forced to endure,” suffer is unobjectionable: I suffer from chronic insomnia. But it’s a bit much when used in contracts to mean “undergo, experience.” Oh, how Acme suffers! Usually the … Read More
Thanks to Jeff Ammon of the Michigan law firm Miller Johnson, I learned of the Sixth Circuit’s recent opinion in Kia Motors America, Inc. v. Glassman Oldsmobile Saab Hyundai, Inc. (copy here). Kia’s dealer contract with Glassman specified that “As permitted by applicable law, [Kia] may add new dealers to, relocate dealers into or remove dealers from the [Area of Primary Responsibility] assigned to … Read More
At last week’s seminar in Sydney, one of the participants asked me about the phrase however so described. I told her that I’d look into it; she probably didn’t expect that it would lead me to another way to handle redundancy. Redundancy has two sources. There’s what I’ll call rhetorical redundancy: when you throw in synonyms or near synonyms just … Read More
I recently noticed a Sidley Austin “practice note” (here) on use of revocable and irrevocable in license agreements. That’s something I hadn’t thought much about previously, so I found it of interest. The main takeaway: Always include either “revocable” or “irrevocable” within the license grant. If any of you licensing types have any observations, I’d be happy to hear them. … Read More
Via Mark Anderson, I learned of the opinion of the High Court of Justice, Chancery Division, in Sycamore Bidco Ltd v. Breslin. I paid it just enough attention to see that it exemplifies an unhealthy English approach to contract drafting and contract interpretation. The contract at issue contained the following language: 5. Seller Warranties 5.1 The Sellers severally warrant to the Buyer … Read More
Today I received the following inquiry from Akiva Schonfeld, a lawyer at Technology Practice Group LLC: I recently graduated from law school and accepted a position at a law firm that specializes in drafting and negotiating contracts for technology transactions. My boss recommended that I read your book, A Manual of Style for Contract Drafting. I have found your book … Read More
