Here’s yet another issue relating to use of may—the phrase may require. My principal problem with may require is that in its most common use, it frames as Party X’s discretion what is best thought of as Party Y’s obligation. I recommend that you omit this use of may require in favor of language of obligation: The Company may require … Read More
The following sentences express the same meaning: If it receives Acme’s prior written consent, the Vendor may cause one or more subcontractors to perform Services. Unless it receives Acme’s prior written consent, the Vendor shall not cause any subcontractors to perform Services. Which would you be inclined to use? Would your answer vary depending on which party you represent?
In this post I discuss “needless elaboration”—the tendency of drafters refer to a given set, then refer to subsets that compose all or part of that set, even though there’s no question as to the boundaries of that set. I give as an example use of the phrase at law or in equity. I’d like to tweak my definition by … Read More
In MSCD 2.3 I recommend that you not use a title that looks at one transaction from different perspectives, as in agreement of purchase and sale. I’m thinking that the same approach applies when one party engages another to provide services. In other words, if I say “Acme hereby engages the Consult to perform those services specified in …,” I … Read More
My contract-drafting class at the University of Pennsylvania Law School focuses on the building blocks of contract language. But we’d be reckless if we didn’t also consider process—more specifically, the implications of the fact that contract drafting is an industrial-scale team sport. To that end, we devoted last week’s class to two online document-assembly demos. The first was a demo … Read More
In this October 2007 post, I discuss how placement of only in a sentence can affect meaning. Well, here’s another issue relating to use of only—the ambiguity that arises when you use only in language of discretion. Consider the following sentence: Acme may close any one or more Contract Stores for any reason, and in doing so it may consider … Read More
I sporadically find myself discussing the nexus between contract drafting and contract law, or rather the contract law that’s taught in the first year of law school. A reader pointed out to me this post on the Conglomerate Blog, which offers a musical analogy to explain the relationship. Buried deep in the comments to that post is my own analogy. … Read More
During a CLE session at the recent Associate of Corporate Counsel annual meeting, one of the panel members used the phrase termination for convenience. It’s a phrase I don’t encounter too often, so I thought I’d better look into it. The Implications of “Termination for Convenience” A quick review of contracts on the SEC’s EDGAR system shows that the phrase … Read More
Today one of my former Penn Law students sent me the following email: I just thought I’d write you a quick note and let you know how incredibly helpful your class has to been to me over my last 3 months of law practice. I am drafting all the time—largely because the partners I work for are very impressed with … Read More
In my tireless quest to master all things related to materiality, I recently asked myself what the heck material breach means. I suspect that if you were to ask that question to a random sample of lawyers and business people, you’d mostly get a lot of hemming and hawing. By extrapolating from my analyses of material and material adverse change … Read More
