In my recent article advocating disciplined use of shall I mention that I haven’t seen any evidence of a flight from shall. At any given time individual lawyers, or groups of lawyers, or conceivably entire organizations, might eschew shall. But I have a hard time imagining that it could be commonplace for any group of lawyers—a notoriously free-spirited bunch—to proscribe … Read More
“The part versus the whole” is the term I use to refer to ambiguity regarding whether a single member of a group of two or more is being referred to, or the entire group. Along with materiality, it’s the most complex topic I’ve written about. That helps explain how the literature on drafting has so thoroughly botched this subject. It’s … Read More
On December 5 I do my final West Legalworks seminar of 2007, in Miami. But in case you thought that was it, here are—drum roll, please—dates for additional U.S. “Contract Drafting—Language and Layout” seminars for the first half of 2008: February 13, Phoenix, AZ February 28, Houston, TX March 6, Orlando, FL March 12, Richmond, VA April 3, Philadelphia, PA … Read More
The December 2007 issue of the ACC Docket, the magazine of the Association of Corporate Counsel, contains the article “Transitioning Your Contract Process from the Artistic to the Industrial,” by Brian Quinn and yours truly. It provides an overview of issues that companies face in controlling the contract process and discusses some useful tools that have become available. I think … Read More
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
