A reader told me about the Ohio Supreme Court’s June 2011 decision in Sunoco, Inc. (R&M) v. Toledo Edison Co. (go here for a PDF copy). The issue was whether Sunoco could use a most-favored-nation provision in its contract with the Toledo Edison Company to require that Toledo Edison extend the term of the contract to match the term of … Read More
When in a contract you want to specify a fee to be paid, it’s redundant to use the phrase flat fee or fixed fee: The Bank agrees to pay RP Financial a fixed fee of $37,500 for preparation and delivery of the original appraisal report, plus reimbursable expenses. During the Term, DigitalGlobe shall pay Consultant a fixed fee of $10,000 per month for up … Read More
When someone wants to discuss my giving expert testimony in a dispute over the meaning of part of a contract, it’s a safe bet that the confusion over meaning will involve one or other (or both) of the following kinds of ambiguity: Syntactic ambiguity, which arises from uncertainty over what part of a sentence a given phrase modifies, or what … Read More
My thanks go to a Penn Law student who reminded me of the following categories-of-contract-language nuance: Consider this provision: During the Due Diligence Period, Acme may on one or more occasions cause its representatives to inspect and copy any Widget Documents located at Widgetco’s offices, on condition that they do so during Widgetco’s business hours and give Widgetco at least … Read More
For purposes of general writing, it’s best to be wary of using the passive voice. That’s even more the case when it comes to contracts. To quote MSCD 2.17: There are three drawbacks to using the passive voice. First, using the passive voice and including a by-agent unnecessarily adds a couple of extra words. Second, using the passive voice and … Read More
Unsurprisingly, most of Koncision’s confidentiality-agreement template relates to, well, confidentiality. But as with any contract, there’s a fair amount of boilerplate. That makes our template a unique source for state-of-the-art boilerplate: notices provisions, governing-law provisions, forum provisions, arbitration provisions, and so on. So if you subscribe using our upgrade-your-template option (go here [link no longer available] for more on our … Read More
Yesterday I was reminded of a contract-drafting competition for law students. It’s run by the National Academy of Legal Studies and Research in Hyderabad, India, in association with the law firm Ashurst. Go here for some background information, and go here for the fact-pattern and rules. I like the idea of a contract-drafting competition. It would, in a small way, help … Read More
Use of shall in contracts will remain a topic of discussion. Today’s entry is this post on IP Draughts by Mark Anderson. It summarizes the current state of play. And it mentions that I’m in favor of using shall for contract obligations, and only contract obligations. I actually recommend an even narrower use than that—use shall only to impose an … Read More
Do yourselves a favor and strike in no way in favor of does not or will not, as in the following examples: Borrower hereby agrees that this Amendment in no way acts [read does not act] as a release or relinquishment of the Liens and rights securing payments of its Obligations. … and such holding shall in no way [read will not] affect the validity or … Read More
Welcome to The Koncise Drafter’s first-ever caption contest! I thought it high time that I let my readers indulge their sense of humor (or snark)—I invite you to submit in the comments your proposed caption to the following photograph. Allow me to take the first crack, off the top of my head: “Cleary Gottlieb associate responsible for drafting the Google–Motorola … Read More
