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This weekend, I decided to explore the implications of the Buyer knowing, pre-closing, that a Seller representation is inaccurate. (I haven’t seen the various aspects of this topic treated together in any detail from the perspective of the drafter.) Here’s what I put together; you should consider it a first draft. I’d be happy to receive comments. Disclosing Pre-closing Knowledge … Read More

It’s commonplace for drafters to assume that unless they say so explicitly, schedules and exhibits attached to a contract don’t constitute part of that contract. Here’s an assortment of contract language reflecting this assumption: Schedule A constitutes a part of this agreement. All exhibits referenced in this agreement are made a part of this agreement. The exhibits and schedules hereto … Read More

With your indulgence, I’d like to talk grammar. At the heart of A Manual of Style for Contract Drafting is what’s discussed in chapter 3—the different categories of contract language and the verb use that’s appropriate to each. One such category is “language of performance,” which serves to memorialize actions of the parties that are contemporaneous with the signing of … Read More

I’ve spent a fair amount of time recently working on commercial agreements, and I’ve noticed that some companies require that their registered trademarks be stated in all capital letters, with the registration symbol “®” appended, whenever the trademarks are referred to in a contract. When reading a contract that refers repeatedly to, say, “FLEXORBALIN®” (I made that up), I find … Read More

I’ve been filling some gaps in my knowledge of Microsoft Word, and while browsing Word’s online “Help” database recently I was reminded of one of my favorite microtopics—“curly” and “straight” quotation marks and the role they play when you review contracts drafted by the other side to a transaction. In a serif typeface such as Times New Roman, curly quotation … Read More

Last February, Wayne Schiess, Director of Legal Writing at the University of Texas School of Law, asked me whether I had any views on a question that he had posed in his blog: Is there a difference between giving notice and giving prior notice? At the time my home office was draped in drop cloths, so my response was perfunctory … Read More

In MSCD (¶¶ 2.64–71) and a Business Law Today article on the subject, I recommend strongly that drafters dispense with the traditional recital of consideration. The traditional recital of consideration is the consideration language that clogs the lead-in to the body of the contract in a majority of contracts. The language varies, but here’s an example of a lead-in containing … Read More

Welcome to my new blog. And more generally, welcome to my new web site. They mark the beginning of a new adventure: Over the past several years, I’ve been devoting an increasing proportion of my time and energy to all things contract drafting. Now I’ve taken the final step and turned this engrossing sideline into my livelihood. As for the … Read More