Knowing the Default Rules

Revisiting this 2014 post on reading a contract reminded me of an aspect of reviewing contracts that perhaps doesn’t get the attention it deserves: factoring in the default rules.

If your understanding of a transaction is limited to what’s in the contract, you might be putting yourself at a disadvantage—you might be unaware of default rules that would apply in the absence of anything in the contract to the contrary.

For example, I recall an M&A lawyer with his own small firm marvelling at how BigLaw lawyers representing the other side are more often than not oblivious to important default rules that apply through operation of the Uniform Commercial Code, and that as a result he has the upper hand.

My deal days are a distant memory, so I’m the last place to look for specifics on this sort of thing. What important but perhaps nonobvious default rules do you think people should be aware of?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.