You can now find on the English website “The Lawyer” my squib The problem with contract drafting and what young lawyers can do about it. It speaks for itself. (Free registration required.)
I’ve been vocal over the past couple of years in suggesting that the English legal profession has bollixed important aspects of contract interpretation. So far, that has elicited some sputtering objections during seminars, but nothing in writing, and certainly nothing that matches my own efforts. That’s not surprising, as I don’t see that there are any serious holes in my argument. But the lack of any sort of discussion confirms that the legal profession runs on conventional wisdom.
6 thoughts on “English Website “The Lawyer” Has My Article on Contract Drafting and Young Lawyers”
‘the English legal profession has bollixed important aspects of contract interpretation’. As a member of the English legal profession (or at least one of them but that’s another story) I’d like to say ‘thank you’ or perhaps ‘sorry’ depending what ‘bollixed’ means. Is it a typo or just an Americanism?
It’s an Americanism. I haven’t investigated this, but suspect that the English prefer the noun form and the Americans prefer the verb (with variant spelling). Myself, I’m a mix of Americanisms and fossilized Englishisms, the result of my having spent my teenage and university years in England.
I think the Brits prefer the spelling “bollocks,” but don’t seem to have it as a verb or in the sense of “bungle.”
Yes, that’s what I was referring to in my comment.
I have posted the following on the website of The Lawyer. This is my view of the law in England and Wales. I am not expert in the laws of the US and would not feel as confident as you to opine on what the position would be in a jurisdiction other than the one of which I have some knowledge.
This article is potentially dangerous article. Mr Adams is plainly wrong in suggesting that there are no “meaningful distinctions” between “represents” and “warrants” and lawyers in England and Wales should be well aware of the clear distinctions. In the case of Sycamore (see below), the distinction resulted in a claim being limited to £6m as opposed to nearly £17m.
In Sycamore Bidco Ltd v Breslin & Anor  EWHC 3443 (Ch), Mann J states [at 203}: “(i) There is a clear distinction in law between representations and warranties, and that would be understood by the draftsman of the SPA.” This is the position in English and Welsh law and lawyers should prefer opinion of Mann J rather than that of Mr Adams. Indeed, the statement of Mann J regarding the clear distinction is trite law. In Sycamore, the importance of the distinction is highlighted in the following : “The point has a real significance in terms of the measure of damages (and also the date at which damages should or can be assessed), so it is necessary to deal with it. If the claimants are right about it, and can otherwise put their claim successfully in misrepresentation, then they may be entitled to recover damages which would not be available under a contractual claim. At their highest, the misrepresentation claim damages are equivalent to or exceed the consideration paid. At its highest the warranty damages claim is about £6 million. Hence the point’s importance.” The consideration paid was almost £17m. The importance of the distinction is clear and those drafting contracts should be aware of this. Therefore, Mr Adams’ views concerning representations and warranties should be disregarded if the contract is governed by English law. As for US law, an academic commentator, Tina Stark, Professor in the Practice of Law at Emory University School of Law, has provided a wealth of authority when disagreeing with the views of Mr Adams on this point. In response, Mr Adams referred to no authority other than his own view.
Also, Mr Adams’ suggestion that there are no meaningful distinctions between “best endeavours” and “reasonable endeavours” , with respect to Mr Adams, to use his word, “indefensible” if the contract uses the two phrases in different parts of the same contract. Contract interpretation is the ascertainment of what specific parties meant by the use of specific words. If parties use “best” in one part of the contract and “reasonable” in another, then presumably they meant the words to have different meanings. In preference to the mandate of Mr Adams, you may wish to read the views of Julian Flaux QC (Now Mr Justice Flaux) in Rhodia International Holdings Ltd. Rhodia UK Ltd. v Huntsman International Llc  EWHC 292 (Comm).
Ah, a comment by Disgusted of Tunbridge Wells!
I referred to no other authority than my own view? That’s not the case: I explain my reasoning in detail in the articles I link to in my piece for The Lawyer. In particular, I discuss in those articles the caselaw you cite.
Because you don’t attempt to rebut the arguments I make in those articles, I assume that either you didn’t read them or didn’t understand them. That you should nevertheless take it upon yourself to chastise me does you no credit.
My arguments have been out there for years, and no one has come remotely close to refuting them. That’s because they’re irrefutable to anyone who cares about being clear and avoiding risk.