In this 2010 post on AdamsDrafting I considered use of aggressively as an unhelpful alternative to reasonable efforts. Well, in the same vein I now offer you … strive! Three examples: CNH Capital shall strive to respond to credit applications within two (2) weeks following receipt of all requested information and material. During the Employment Period, Executive … (iv) shall perform Executive’s … Read More
Someone steered me to this post on the California Corporate & Securities Law blog. It’s about a recent California case on the meaning of best efforts. The court held—shock horror probe!—that best efforts is subject to a reasonableness standard, leading my informant to suggest that the court agrees with my views on this subject. I’m delighted to receive tips of … Read More
In case you’re still mulling over my post on using states instead of represents and warrants (here), allow me to try to put in a broader context what makes represents and warrants irrelevant for purposes of statements of fact in a contract. After putting it off for, oh, ten years, we finally had a lawn sprinkler system installed. An important component … Read More
In its recent opinion in In re C.P.Y. (copy here), the Texas Court of Appeals had occasion to consider the phrase “full-time basis,” and it concluded that it’s ambiguous. Youst (the husband) was required to pay Wells (the wife) alimony until, among other events, she returned to work “on a full-time basis.” Wells got work as a contract attorney, so … Read More
In this recent post, I discussed a case in which the word “termination” was held not to apply to “expiration” of a contract. Thanks to reader, I learned about a case, Olympus Ins. Co. v. Aon Benfield, Inc., No. 11-CV-2607 (D. Minn. March 30, 2012), in which the court came to essentially the opposite conclusion, due to nuances of contract language. … Read More
[Updated July 14, 2015: This topic is revisited in this 2012 post and this 2015 post.] The recent Lawyers Weekly article that I linked to in a previous post contains the following: The phrase “sole and exclusive license,” for example, is common yet contradictory. “Sole,” on the one hand, means only one person has the legal right to use the product. … Read More
[Update: I offer my analysis of this issue in this 2011 post.] Chadwick Busk of The Fine Print blog told me about this item on Lexology (free registration required) by Patrick T. Sharkey of Jackson Walker LLP. I hope Patrick doesn’t mind if I quote extensively from it: A recent Texas Supreme Court decision highlights the importance of thoughtful drafting. … Read More
A couple of days ago I received from a reader an email that included the following: I’ve got a question about the use of apostrophes in notice period provisions. I was rather surprised to see that section 8.96 of the MSCD includes apostrophes after the number of days/weeks/months in your example provisions. Shouldn’t such provisions simply refer to “days”, “weeks” … Read More
Recently someone asked me about settlement and release agreements, and that put me in mind of a picturesque drafting usage that’s a fixture of release language—from the beginning of time, as in “Jones hereby releases Acme from any claims … arising from the beginning of time to the date of this agreement.” I searched for this phrase in the material … Read More
I’m fond of invoking two overarching rules of drafting—“be consistent” and “use standard English.” I periodically mull adding a third. Possible candidates come and go, but a current favorite is “say what you mean.” In other words, don’t use stock phrases in the hope that a court will construe them in the way you intended. Instead, address issues head-on. A … Read More
