The following constructions using party are commonplace: Acme is a party to a confidentiality agreement with Widgetco dated October 7, 2007. Acme and Widgetco are parties to a confidentiality agreement dated October 7, 2007. In the above examples, party is used as a noun. I suggest that in this context it would be preferable to use it as an adjective. … Read More
Yesterday was devoted to grading assignments submitted by students in my Penn Law contract-drafting course. One of them unintentionally made me aware of the formula Party X hereby grants Party Y the right to [verb]. It’s language of performance functioning as language of discretion. If a contract contains the provision Acme may sell the Assets, it’s appropriate for the reader … Read More
In grading student assignments, I found myself commenting on their use of unless the parties agree otherwise. I thought that I had already written something somewhere about this phrase, but evidently not. So here goes: As a general matter, the phrase unless the parties agree otherwise is redundant. The parties could agree to waive, amend, or delete any provision in … Read More
I’ve resisted the temptation to turn this blog into a drafting freak show. But what the heck—step right up! … In this article I offer plenty of mix-and-match efforts provisions, but the one immediately below nevertheless caught my eye as I was trawling through EDGAR today—three different efforts provisions in one! NNOG will use its best good faith reasonable efforts … Read More
I’ve occasionally worked on transactions involving parties who plan on engaging in discrete projects from time to time. Generally these transactions have been structured so that one contract governs unchanging aspects of the relationship—perhaps payment, delivery, dispute resolution, and plenty of other matters—and a separate contract governs each project and specifies what needs to be done, when, and for how … Read More
One of the participants at my recent Washington, D.C. seminar asked me about the notation “intentionally omitted.” I love being asked about stuff I hadn’t ever thought of writing about. “Intentionally omitted” is used in a contract to indicate when the text of an article, section, subsection, or enumerated clause has been omitted while leaving the enumeration of that unit … Read More
Reader Mike reminded me of the usage may but is not required to, as in the following provision: Indevus may, but is not required to, assist Esprit, at Esprit’s election, in Esprit’s efforts to seek and obtain FDA Approvals, subject to reimbursement of Indevus’ related costs and expenses. The word that comes to mind is “lame”—may expresses discretion, so is … Read More
If commercial contracts are your thing and on Monday morning you find yourself in the Seattle area with some time on your hands, you might want to consider attending a presentation by Tim Cummins, president and CEO of the International Association for Contract and Commercial Management (IACCM to its friends). The presentation is being hosted by Starbucks. You don’t need … Read More
I’ve already had occasion to consider the distinction between obligations and conditions. (Click here and here.) Well, here’s another thought: If satisfaction of a condition would trigger an obligation on the part of another party, then instead of using a condition to express that concept you may want to use languagage of discretion using will not be required to. (For … Read More
The Sept.–Oct. 2007 issue of “Deal Lawyers” contains my article “What does ‘Material’ Mean.” Click here for a copy of the entire issue. This article represents a boiled-down version of my recent New York Law Journal article on the subject. But thanks to valuable input from two readers of this blog, I’ve made some useful changes: I jettisoned the defined … Read More
