I generally explain the concept of ambiguity by saying that if reasonable people read a given contract provision and derive different meanings from it, that provision is ambiguous. But that doesn’t quite capture the problem that alternative meanings pose for the contract drafter. It’s not only the reasonable reader that you’re worried about. Instead, you’re worried about anyone, reasonable or … Read More
I launched this site in 2006, and recently it’s been showing its age. That’s not entirely due to sloth on my part, as getting anything adjusted had become a protracted annoyance. So recently I engaged web designer Tom Leadbetter, and here’s what we did: The left-hand column is wider, to take into account that people have been migrating to wider monitors. I … Read More
I’m attuned to the particular challenges facing anyone who isn’t a native English speaker and is required to draft or negotiate contracts in English. Indeed, my site contains this note on the subject. I was recently reminded of this issue in a number of ways. First, I exchanged emails with a reader in Asia. Here’s what he said, in part: … Read More
Today’s issue of the New York Law Journal contains my article “The AAA Standard Arbitration Clause: Room for Improvement.” Click here to go to a pdf copy. (It’s also available here if you subscribe to the New York Law Journal.) It was fun to write, and here’s why: I got to revisit a topic, arising out of or relating to, that … Read More
In this May 2007 blog post I mentioned the dispute between Crusader Entertainment and schlockmeister Clive Cussler. In this post, the ContractsProf Blog provides the latest installment in this gripping saga—an opinion by a California appellate court. Here’s the bit that caught my eye: On the key issue in the appeal, the court found that Cussler had a contractual right … Read More
My recent post on stand-alone purchase orders prompted a related thought: When you issue a stand-alone purchase order (in other words, one not issued under a master contract), you could incorporate the general terms (in other words, everything that doesn’t relate to deal-specific matters such as product and price) in different ways. You could include them with the purchase order, … Read More
You sometimes see a contract that has a paragraph entitled “Acknowledgement” added at the end, after the party signatures. For example, a search on the SEC’s EDGAR system quickly retrieved this document, a “forebearance agreement and amendment to indenture” between Gulfstream International Group, Inc. and Shelter Island Opportunity Fund, LLC. Here’s what came after their signature blocks: ACKNOWLEDGMENT AND AGREEMENT … Read More
I received the following inquiry from a reader: As you know, goods or services can be purchased by means of purchase orders issued under a master contract or by POs that aren’t issued under a master contract—I’ll refer to the latter as “stand-alone” POs. They can be issued for one-off purchases or on a regular basis as part of an … Read More
It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to the courthouse. More prosaically, avoiding … Read More
Without any editorializing by me, here’s an extract from this article by Sathnam Sanghera in the Times Online: On the one hand, written agreements protect parties if things go wrong and provide a useful framework for engagement. But, on the other, drafting contracts slows business down—something Stephen Covey emphasises in The Speed of Trust: The One Thing that Changes Everything, … Read More
