Let’s start with what we know: The notion of a hierarchy of efforts standards is nonsense. It’s inconsistent with English usage, semantics, and how contracts work. For more, see my 2019 law review article. (According to the Delaware Chancery Court, it’s “The most thorough analytical treatment of efforts clauses.”) But some drafters are so taken by the notion of a … Read More
I’d like to report overuse of the “acting as independent contractor” provision. Here’s the version that makes sense: The parties intend that the Consultant will be an independent contractor. It makes it clear that the parties intend that an individual who is providing services to a company won’t be an employee of the company. (It uses language of intention because … Read More
[Updated 19 Dec. 2021: I belatedly realized I misunderstood the holding of the English case!] Thanks to this blog post by Mark Anderson, I learned of a new English court opinion on endeavours provisions in a case before the Technology and Construction Court. O frabjous day! (Not really.) The opinion in question is CIS General Insurance Ltd v IBM United … Read More
Let’s look at “entire agreement” provisions. Or maybe you call them “merger” provisions. Or “integration” provisions. Whatever. Guidance Consider this boilerplate provision offered in Commercial Contracts: Strategies for Drafting and Negotiating (Vladimir R. Rossman & Morton Moskin eds., 2d ed. 2021) § 26.04[C]: Entire Agreement. The Contract represents the entire and complete understanding of the parties with respect to its … Read More
How do you express the concept of not complying with the law, but without expressing it in the negative? (In other words, without using not, or fails to, or the prefix non-, as in noncompliance.) Here are some verbs you could use: violates, breaches, contravenes, infringes, breaks. But which should you use? If it’s a popularity contest, here’s a rough … Read More
I’ve written previously about “elegant variation.” Here’s what I said in this 2015 post: Elegant variation—going out of your way to avoid using the same word or phrase twice—is never a good idea. It’s particularly unfortunate in contract drafting, in which tone plays no part. If you wish to convey the same meaning, use the same word. If you think … Read More
In my role as LegalSifter‘s chief content officer, I’ve been looking into provisions relating to information security. In the process, I’ve encountered some new jargon. (I use the word jargon as shorthand for unhelpful terms of art.) One example has stood out—the phrase principle of least privilege, sometimes truncated to just least privilege. Here’s an example: There’s a good chance … Read More
Of the recommendations in MSCD, none strikes terror in the hearts of traditionalists more than using states instead of represents and warrants, and statements of fact instead of representations and warranties. (Well, it’s probably a tie between that and—brace yourselves—dispensing with the defined term this Agreement. Gasp.) But my recommendation that you use states comes with a health warning: Whether … Read More
The concept of termination for cause occurs in employment agreements. That’s where it belongs—don’t put it in other kinds of contracts. Here’s an example of a definition of “Cause” from an employment agreement: And here, from a manufacturing services agreement, is a section referring to termination for cause: In employment agreements, the concept of termination for cause takes the … Read More
A few days ago I encountered the word coterminous for the first time … ever? Of course, it was in a contract. Here’s the Blacks Law Dictionary definition: coterminous (koh-tər-mə-nəs) adj. (18c) 1. (Of ideas or events) coextensive in time or meaning <Judge Smith’s tenure was coterminous with Judge Jasper’s>. Is coterminous a worthwhile term of art, or is it … Read More
