The English case Ener-G Holdings PLC v Philip Hormell (discussed in this post) also had to consider what it means to say that notice can be served by “delivering it personally.” In that context, “personally” could relate to the person doing the delivering. After all, one says, “I delivered it personally,” meaning that the speaker was the one who delivered the … Read More
Steven Sholk, that indefatigable source of leads, has told me about yet another opinion dealing with a dispute over termination versus expiration. That’s a topic I’ve written about in a few blog posts. In the case at issue, Hamden v. Total Car Franchising Corp., 7:12-CV-00003, 2012 WL 3255598 (W.D. Va. Aug. 7, 2012) (PDF copy here), the court held, among other … Read More
For the heck of it, let’s go back to basics. Generally, no purpose is served by stating, in the introductory clause or elsewhere, that the parties intend to be legally bound. The approach under U.S. law is summarized by section 21 of the Restatement (Second) of Contracts, which states that “Neither real nor apparent intention that a promise be legally … Read More
Yeah, yeah, attorn has an established legal meaning, although I’ve never had occasion to use it. From Garner’s Dictionary of Legal Usage, here’s the definition of the related noun: attornment has two analogous senses, the first relating to personal property and the second relating to land. It may mean either (1) “an act by a bailee in possession of goods … Read More
Consider the phrase reasonable wear and tear, as in “The Grantor shall maintain the Equipment in good working order, reasonable wear and tear excepted.” I know that reasonable wear and tear is standard, but it’s also a bit quaint: Wear is fine, but what’s with tear? Presumably the nifty rhyme has a lot to do with it. (Garner’s Dictionary of … Read More
What’s the difference between seller and vendor used as defined terms for party names? Here’s what Bryan Garner has to say in Garner’s Dictionary of Legal Usage: In specific contexts, however, a differentiation is emerging: in computer contracting, the practice is to use vendor rather than seller almost exclusively. The term vendor is used in two senses: (1) “any member … Read More
[Updated July 14, 2015: This topic is revisited in this 2015 post.] I wrote about the phrase sole and exclusive in this 2010 post on AdamsDrafting. Last April Mark Anderson wrote about it in this post on IP Draughts. At the risk of overkill, I’d now like to take another crack at the subject. “Sole” and “Exclusive” in Licensing In … Read More
Release language usually consists of a slurry of redundancy. In this 2009 post on AdamsDrafting I considered a standard component of release language, irrevocably release. Here’s what I said: Once you release something, it’s gone, without any way for you to claw it back. So having a party irrevocably release something does nothing other than add a surplus and potentially confusing … Read More
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
