Yesterday I gave another of my Osgoode Professional Development seminars in Toronto, to a sellout crowd of eighty. During a break I discussed with one of the participants what to call the components of the body of the contract. In a follow-up email, here’s what she had to say on the subject: As discussed, in England the practise as I … Read More
“Definedtermitis” is a condition caused by excessive reliance on defined terms. It causes clogging of the arteries of your contracts. Those who succumb to it are referred to as “definedtermites.” Consider an email I received today from a reader: OK, so I thought it was a typo, but it turns out it was intentional. I was reviewing a clause in … Read More
It’s not only transactional types who are interested in contract language. If you want to see how a different online ecosystem approaches the subject, I suggest you have a look at this post on Language Log and the related comments. I like to think that I stand somewhere between the linguists and the lawyers. It’s good to have both perspectives. … Read More
Today I had occasion to consider use of the phrase in particular in contracts. Here are some examples, taken from the SEC’s EDGAR system: The Company has taken all reasonable steps to maintain the confidentiality of or otherwise protect and enforce its rights in its confidential information, in particular the trade secrets owned by the Company. Each FREGAT Owner represents … Read More
I’m looking for caselaw or commentary on the following issue relating to the parts of a mergers-and-acquisitions contract. If a buyer wants to address in an M&A contract circumstances that are under the seller’s control—for example, whether the seller is in good standing under Delaware law—it would make sense to do so by means of a representation. If that representation … Read More
Today I saw the following in a contract I pulled from the SEC’s EDGAR system: SunPower hereby guarantees that, subject to Section 22, it shall supply and deliver each of the Products to the delivery point specified in a given Purchase Order (each, a Delivery Point ) on or prior to the scheduled delivery date therefor specified in such Purchase … Read More
December is when the American Bar Association tells its authors how their books did during the year that ended the previous September 30. So a couple of weeks ago I heard how the second edition of MSCD fared during the year starting just four months after its publication in July 2008. Publishers and authors are notoriously cagey about sales information, … Read More
You may recall my September 2009 post regarding my correspondence with Glenn West on that deathless subject, the phrase representations and warranties. (If you’re new to this subject, you may want to consult this handy 558-word summary of my analysis.) Well, Glenn couldn’t leave well enough alone—today I received from him an email on the subject, which he sent to me … Read More
A reader recently asked me about use of the phrase ceteris paribus in contracts. I was unfamiliar with this phrase—no Latin scholar I—so the first thing I did was consult Black’s Law Dictionary, which told me that ceteris paribus means “other things being equal.” I then checked the SEC’s EDGAR system, from which I learned that of the umpteen contracts … Read More
Reader Bob Bramson suggested to me that I have a look at GTE v. Cellexis, 341 F.3d 1 (1st Cir. 2003). So I did. At issue was whether GTE could enforce its settlement agreement with Cellexis so as to preclude Cellexis from suing Cellco, a GTE affiliate that hadn’t been a GTE affiliate when GTE and Cellexis had entered into … Read More
