It’s good to be precise. But when the future is sufficiently uncertain that you can’t be precise, vagueness comes in handy. But there’s vague and there’s vague. Consider reasonable. Because reasonableness isn’t determined by objective criteria, determining whether a given act is reasonable requires (1) a potentially messy inquiry into the surrounding circumstances and (2) measuring the findings against one’s … Read More
I’ve been wondering about to the extent permitted by law. Let’s consider the contexts in which it might be used in a contract between Acme and WidgetCo: You can use it in language of discretion, as in To the extent permitted by law, Acme may terminate the Target Employees. If Acme terminates any Target Employees unlawfully, it will have to … Read More
A standard piece of boilerplate is a provision stating that the prevailing party in any dispute is entitled to recover costs. Such a provision might look something like this: Recovery of Expenses. In any adversarial proceedings between the parties arising out of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any … Read More
I expect I could count on the fingers of one hand the times I’ve gone off-message and blogged about something other than contract drafting and the contract process. Add this post to that short list. This evening I drove east on Jericho Turnpike, a few miles from my Long Island home, to see Vickie Pynchon—author, lawyer, mediator, negotiation trainer, and … Read More
In this recent post I first articulated my unease regarding shall cause, and I mentioned it again in yesterday’s post on indemnification. Given that a significant proportion of you think that indemnification smells like week-old fish, and given that for now I have no way to put you at ease on that subject, the shall cause issue isn’t going anywhere. … Read More
In this recent post on indefinitely I considered the best way to express that a given obligation lasts forever. That brought to mind a different, and problematic, use of forever, namely in language of performance. Consider the following examples: The Executive, on behalf of the Executive and the Executive’s heirs, executors and assigns hereby releases and forever discharges the Company … Read More
Thanks to reader Steven Sholk, I learned about the recent Ninth Circuit opinion in Richey v. Metaxpert LLC. (Click here to go to a PDF copy.) Before Richey started working for the appellants, in 2007 he signed an employment contract in which he agreed that he wouldn’t compete with the appellant company “in the computer gaming business” for two years after … Read More
In contracts, the word indefinitely is used to convey two different meanings. I’m not keen on that, seeing as the Prime Directive of contract drafting is not to use one word or phrase to convey two or more meanings and not to use two or more different words or phrases to convey a single meaning. One meaning conveyed by indefinitely … Read More
Periodically I inflict on you my musings regarding notices-provisions terminology. (See this August 2009 AdamsDrafting blog post on why I’ve opted for “national transportation company,” and see this March 2009 AdamsDrafting blog post on why I refer to “fax.”) Well, it’s now time for me to address another such cataclysmic issue. I’ve never been crazy about the phrase “personal delivery.” … Read More
In this post at Adam Smith, Esq., Bruce MacEwen—I assume it’s Bruce—riffs on a couple of articles in the U.K. periodical Law Week, this one asking “Does the global law model help or hinder the top-level adviser?” and this one asking “Do big personalities exist at law firms?” These articles, and Bruce’s piece, consider the notion that law firms are limiting their recruitment … Read More
