Thinking about materiality-scrape provisions had me pondering idly what other contract provisions are known by nicknames. Only three came to mind—ipso facto clauses, anti-sandbagging provisions, and “garden leave” clauses. A lame effort by yours truly.
There are doubtless plenty other such nicknames out there. I invite you, dear reader, to tell us any you can think of. The only rule is that a name for a given provision doesn’t count as a nickname if any element of the nickname appears in the language of the provision, including the heading. So, for example, “further assurances” and “merger” provisions don’t make the cut, and neither does “10b-5 representation.”
18 thoughts on “Nicknames for Contract Provisions”
What about MFN?
One that comes to mind: “ratchet” provisions.
I tried to think of others… too late in the day. :)
Himalaya Clause cf. http://en.wikipedia.org/wiki/Himalaya_clause
“No poach”, the nicknames for various deadlock resolution clauses (often, it seems, ending “shoot out”), “Romalpa” (for ROT) all come to mind.
Green shoe option, and blue sky provision (paralleling “blue sky” laws). Also, tag/drag-along, shotgun, Russian roulette, Dutch auction, and no-shop clauses…
standstill, drop dead, blue pencil (severability), further to James’s no-shop is the newer go-shop, poison pill (although that’s usually an entire agreement in itself), big boy (each party has been represented by counsel… not the big boy letter)
Someone beat me to it on “evergreen clauses”, which I have additionally named the “fat and happy clause” as I believe it leads tp parties so seemingly contented with their relationship that they don’t spend time to revisit and potentially improve it.
And for good measure I’ll add “sunset provision” and “most favored nation” clause.
Fitz: Goldman beat you to what he termed “MFN”. Ken
How about the “Jane Austen” Clauses:- Term and Termination? regards, Alan
K4K, also known as “knock for knock”, e.g., a reciprocal indemnity clause in which each party assumes the risk of loss, bodily injury or property damage to his people and property, even if caused by the other party’s sole negligence.
Cluases invoking the parol evidence rule are variously called “merger clauses,” “integration clauses,” and “zipper cluases.”
Flow-down and pass-through clauses (in subcontracts)
The “Kathie Lee” provision refers to an anti-sweatshop clause.
I’m surprised nobody mentioned “basket clause,” the one that purports to deal with all the things the drafters forgot to deal with (of which a classic example, perhaps, is the Ninth Amendment to the Constitution).
The only rule is that a name for a given provision doesn’t count as a nickname if any element of the nickname appears in the language of the provision
That rule would disqualify “materiality-scrape”.
Joe: I guess you got me! But because it’s such a funky name, I’m granting it an exemption … Ken