In this 2019 post I suggest that not much is to be gained by arguing which is better, English drafting or US drafting. But I did point out one noteworthy distinction: Even if you accept that a given kind of U.S. contract is likely to exhibit more dysfunction than an equivalent piece of English drafting, that’s perhaps offset by the … Read More
Friends, I recommend you run away from the movie SAS: Rise of the Black Swan. Really. Conserve your brain cells for a more worthwhile activity, like sniffing glue. But being a supporter of the arts, I inflicted it on myself a couple of months ago. For research purposes. As a result, I can report a deathless bit of dialogue at … Read More
Today I saw this tweet [Updated 2 Jan. 2022: The tweet that prompted Casey’s response was later deleted. It asked which was better, indemnification or indemnity]: The authority is @AdamsDrafting, as alwayshttps://t.co/g1ILOT4fht — D. Casey Flaherty (@DCaseyF) November 4, 2021 I was pleased to receive that endorsement from Casey—he has been the most astute observer of my stuff. (See his … Read More
In my 2019 article, I explain that in the phrase best efforts, the word best has been “delexicalized”—instead of expressing its dictionary definition of “exceeding all others,” in this context it’s used as a rhetorical flourish. Other phrases that feature the delexicalized best are in the best interest(s) of Acme and to the best of Acme’s knowledge (and variants). I’ve suspected … Read More
Warning: this post is for hard-core efforts fans only. As part of my frenzy of rooting around on EDGAR yesterday looking for efforts anomalies, I saw this: The phrase best efforts possible is an oddity. It and the variant best possible efforts occur only a handful of times on EDGAR, mostly in contracts drafted in countries where English isn’t the … Read More
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
