While rooting around on Edgar, as is my wont, I came across the following: You see it? Bang in the middle? “HABENDUM”! I know I don’t get out much, but I’d never seen habendum before. Here’s what Black’s Law Dictionary has to say: habendum clause (hə-ben-dəm) (1829) 1. The part of an instrument, such as a deed or will, that defines the extent of … Read More
The language of contracts in English is basically the same the world over, but with local variations. In the course of my work for LegalSifter this week, I learned of one such variation—the English affinity for the word, uh, variation. Or more specifically, the combination amendment or variation. Actually, it’s not only the English who indulge in this: you see the … Read More
I’ve seen more than my fair share of unfortunate drafting, but my work for LegalSifter has exposed me to a whole new level of stoopid. This post is on the LegalSifter blog. Go here to read the rest.
A reader introduced me to a recent opinion of the Texas Court of Appeals in TEC Olmos, LLC v. ConocoPhillips Co., No. 01-16-00579-CV, 2018 WL 2437449, (Tex. App. 31 May 2018) (PDF here). It raises an interesting issue relating to force majeure provisions, one that has featured in other opinions. Rather than summarize the facts and the proceedings, I’ll cut … Read More
Various verbs are used in efforts provisions. MSCD lists make, exercise, exert, expend, undertake, and use. Well, I’ve just spotted another one: exhaust. If you want to know why I bother paying attention to such oddities, stick around to the end of this post. But first, let’s explore exhaust. … Because this post relates to my work as advisor for LegalSifter, the AI document-review … Read More
Consider the following provision, which I encountered by chance: Confidential Information will not include information that the Recipient can reasonably demonstrate … was rightfully known by it or its Affiliates prior to the date it was disclosed by the Discloser. No, we’re not going to get into nuances of confidentiality agreements. Instead, this post is about the notion of a … Read More
Today I tweeted the following: I suggest that we can consign "remuneration" (and "remunerate") to the scrapheap, use "compensation" (and "compensate") instead. — Ken Adams (@AdamsDrafting) December 20, 2017 It prompted the following tweet from the redoubtable @IPDraughts: No, no, no. Compensation is what you get when you are injured by an industrial accident. Pay is what you get from … Read More
Recently I received the following from longtime reader Jeff Wheeler: Here’s a little timewaster of an article that nonetheless got me pondering a drafting question: http://lifehacker.com/lets-end-the-gif-jif-pronunciation-debate-right-now-1796419121. After pondering the relevance of weightier debates to this one, the author seems to conclude there’s no objectively correct answer or superior argument to be made for one pronunciation versus the other, and advises that … Read More
[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).] Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, … Read More
A reader asked me about excluding without limitation. Yes, it’s a thing, unfortunately, or at least enough of a thing to prompt me to look into it. It occurs in 55 contracts filed on the SEC’s EDGAR system in the past year. I’ve included at the bottom of this post extracts from some of those contracts. I don’t understand excluding … Read More
