Friends, today’s word is abrogate. If you use it in contracts, you need to get over yourself. Here’s how Black’s Law Dictionary defines it: abrogate (ab-rə-gayt) vb. (16c) To abolish (a law or custom) by formal or authoritative action; to annul or repeal. I rummaged around on Edgar to see what use people have had for abrogate, and I quickly noticed that once … Read More
You know the em-dash—it’s what divides the two parts of this sentence. According to Garner’s Modern English Usage (GMEU), “The em-dash is perhaps the most underused punctuation mark in American writing.” But in my experience, once people start using the em-dash, they quickly start using it promiscuously. That’s the case with me, with one exception: I don’t use it in … Read More
“What!,” I hear you say. “More on efforts! You cannot be serious! Yes, more on efforts, because I’m determined to explore every nook and cranny of the f*cked-up world that is efforts provisions in traditional contract drafting. And today’s topic is the phrase on a best-efforts basis. A best-efforts offering is a kind of securities offering. Here’s how Practical Law … Read More
As you might have guessed from my previous two posts, I’m working on a guarantee. Unsurprisingly, contains a sentence that refers to waiver of presentment. I knew this day was coming, and I’ve long been prepared for it. I reached for Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 197 (2d ed. 2008). (The discussion in his … Read More
In guarantees for payment of debt, the key language of performance—hereby guarantees—is usually supplemented with one or more of the following adverbs: absolutely, unconditionally, and irrevocably. I recommend you omit all three. I suspect that many who work with guarantees would find that a shocking notion. But to insist on retaining some combination of the three adverbs is to misunderstand … Read More
Way back in 2006, I considered in this post the distinction between guaranty and guarantee used as a noun. That analysis still applies, and it’s reflected in MSCD. To summarize, the noun guarantee is used to express a meaning analogous to warranty. By contrast, when referring to a promise to pay the debt of another, guaranty is the more popular … Read More
A friend of the blog who enjoys stirring the pot sent me a link to this newsletter produced by the law firm Mayer Brown. When it comes to scholarship, either you’re a dwarf standing on the shoulders of giants, or you’re just a dwarf. By that standard, we got us a couple of not-on-shoulders-of-giants dwarfs in the form of the … Read More
Last week I saw this tweet by @Torcherama: I review contracts in my day job and as a volunteer board member. I get the need for legal language – to a point. But, come on. Appurtenant? Don't make me look up words on top of having to read long, complex sentences. It means "belonging to". Lawyers, do better. #PlainLanguage — … Read More
The above cartoon, by @MartinShovel, caught my eye. I won’t claim to know whether we’re dealing with cause or effect, but a toxin coursing through civic life in both the United States and the United Kingdom is the “post-truth” notion that all that’s required to make our point of view valid is that we believe it. There’s nothing new about … Read More
I’ll be in London in November. In addition to doing a “Drafting Clearer Contracts” seminar on 5 November for my friends at UCL Faculty of Laws (here), I’ll be speaking on 1–2 November at The Legal English Event. I’m looking forward to the The Legal English Event, so I noticed this tweet: What does indemnify mean? What does warrant mean? … Read More
