[Update March 24, 5:30PM EDT: Some people are suggesting that there’s something fishy to the story of Wachtell’s “mistakes.” See, for example, this post at Dealbreaker, and this one on the Conglomerate Blog. On the other hand, Steven Davidoff’s analysis, at DealBook, takes the story at face value. I’ll let others who are closer to the deal figure out the … Read More
I’m grateful to stalwart readers Steven Sholk and Mike Wokasch for contacting me about the Bear Stearns merger agreement. (Click here to go to a PDF copy.) This deal raises all sorts of policy issues, but we at AdamsDrafting say to heck with the big picture—let’s look at the drafting angle! I offer below some random impressions derived from ten … Read More
I’m working on the introduction to MSCD2, and five minutes ago I wrote this: English is used in contracts around the world, and not only in contracts between companies from English-speaking countries. English has become the lingua franca of international business, so a contract between, say, a French company and a Brazilian company is more likely to be in English … Read More
I can think of five issues relating to how you state amounts of money in a contract. Words and Numerals Drafters will often do the words-and-numerals thing when stating amounts of money: Acme shall pay Widgetco One Million Dollars ($1,000,000). The idea is that whereas numerals are easier to read than words, they’re more prone to typographic errors; adding words … Read More
Most of what I do addresses how to express clearly and efficiently whatever you want to express in a contract. But that only goes so far, because no amount of clarity will help you if you simply mishandle an important substantive issue. This story in the ABA provides a reminder of that. A Texas law firm retained an Arizona law … Read More
I’ve written at inordinate length about how MAC provisions are used in contracts and how MAC is defined. But I don’t much get into whether, and how, MAC provisions are actually invoked in deals, unless issues of contract language come into play. For a useful discussion of such policy issues, see this DealBook story by Steven Davidoff.
[Updated 9 March 2021: This post has been superseded by my article Know Your Enemy: Sources of Uncertain Meaning in Contracts, Michigan Bar Journal (Oct. 2016) (here).] [I was prompted to write this post after consulting, over the past few months, dozens of cases ostensibly involving ambiguity but in fact dealing with a range of other problems. I plan on … Read More
Reader Michael Fleming informed me of US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 U.S. Dist. LEXIS 10841 (D. Minn. Feb. 11, 2008). This case serves as a reminder that a court would likely conclude that if Smith promises to purchase widgets from you, you’ve in effect also promised to supply widgets to Smith. US Salt and … Read More
Here’s a quick way to save three words: instead of saying in accordance with the terms [or provisions] of section 6, say simply in accordance with section 6.
Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view: When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to address the immediate consequences. When … Read More
