I recently encountered the word draftsman in a law review article. That prompted me to give some thought to use of the word. It’s certainly commonplace—a search of the TP-ALL database on Westlaw (“All Law Reviews, Texts & Bar Journals”) retrieved some 5,000 articles written in the last three years that use it. I prefer to avoid gender-specific language. And … Read More
Yesterday I posted two items (this one on and and or, this one on the passive voice) that were rather more harum-scarum than my normal offerings, in that I ended up quickly making significant changes in response to reader comments. (Thank you, all.) Having previously limited myself to the building blocks of contract language, I’m now working to bring the … Read More
As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather’s contract with CBS. It also featured in a New York appellate court’s opinion in CBS’s appeal of the trial court’s refusal to dismiss Rather’s breach of contract claim against CBS. At issue was the interplay of two contract provisions. Here’s the pertinent … Read More
MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information … In this context, the active voice is wordy. It’s obvious that a proceeding would have to be brought by someone. Because it doesn’t matter who brings a … Read More
One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information … I’m wondering whether one could improve on that formulation—given that or can be inclusive or exclusive, it’s not … Read More
To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending the commenter a friendly reply. … Read More
Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I’ve come across in a long time, agrees with me on represents and warrants and representations and warranties. Below is the email Glenn sent me in connection … Read More
If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in the U.S.) and … Read More
It’s clear from reader feedback that I need to do a better job of explaining myself. Here goes: It’s pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties because … Because my informal inquiries indicate that most lawyers treat the elements of those phrases as synonyms, much as they do the two elements … Read More
On the website of the state bar of Wisconsin I came across an article entitled “Backdating Documents: Not Necessarily the Stuff of Scandal.” It contains the following passage: Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of backdating. This is backdating … Read More
