A reader asked me what I think about therefor. Here’s my equivocal answer: In MSCD 12.99 I note that here– and there– words such as herein and thereunder are dreary legalese. That’s why I use in this agreement instead of herein. But sometimes, a there– word allows you to avoid long-winded repetition. Looking more closely at therefor suggests another wrinkle … Read More
If I were at the helm of a well-funded trade group called “The Association of Contract-Drafting Professionals” (yeah, right) and we were rolling out an advertising campaign, here’s what I might use as a slogan: Contract language is specialized. Leave it to specialists. Here’s the idea behind it: Contract language is akin to software code—it’s limited and stylized. Just as … Read More
If you want to do business in the marketplace of ideas, you have to be prepared to repeat yourself, and you should be willing to engage in good-natured debate. So here goes: I noticed that a recent newsletter issued by the Canadian law firm Fraser Milner Casgrain contains an article on that favorite topic, the meaning of various efforts standards. … Read More
I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it. Here’s the relevant part of Vickie’s comment: I’ve been devising a negotiation class for transactional lawyers with a transactional attorney/negotiation professor … Read More
[Revised July 24, 2010 to (1) revise the meaning of Closing so that it means the same thing as Effective Time, (2) eliminate the defined term Effective Time, and (3) create the defined term Filing Date.] In this February 2010 blog post I said that the word closing is ambiguous: Does closing mean the moment a transaction is consummated? Or … Read More
I’m familiar with the ethics-in-drafting implications of including in a contract a provision that’s invalid. This topic is explored in Gregory M. Duhl‘s article “The Ethics of Contract Drafting,” which I mentioned in this February 2010 blog post. A provision can be invalid because it’s illegal. Gregory’s article gives as an example of an invalid clause a provision that disclaims … Read More
I’ve written previously about signature-automation tools. (For one, see this April 2008 blog post.) Thanks to this post at Lawyerist.com, I see that Adobe has joined the fray, with its eSignatures beta. I haven’t yet checked it out; I’d be interested to know what you make of it and, in particular, how you think it stacks up against the competition.
I concluded my recent post on “good enough” in contract drafting by distinguishing the quality trade-offs inherent in the notion of “good enough” from the question of how risk-averse you want to be in drafting and negotiating deal terms. But those issues are related, in that both require you to determine when you reach the point of diminishing returns in allocating resources. … Read More
You sometimes see quotation marks used to offset attachment enumeration, as in these two examples from EDGAR: “Excluded Property” shall mean those items of personal property either owned by Executive or to which Executive has exclusive rights and listed on Schedule “1,” entitled “Excluded Property,” which is attached hereto and made a part hereof. The Stock Option may be exercised, … Read More
It’s not often that the topic of drafting corporate resolutions comes up in my day-to-day activities. That’s why I was pleased to receive from one of the participants in my recent Chicago seminar an email that included the following: During lunch I mentioned to you that I had already put into practice the recommendations published in the first edition of … Read More
