OK, so we now all know that the phrase represents and warrants is pointless and confusing. My recent article on the subject (here) establishes as much in excruciating detail. But I don’t recommend that you ask that the lawyers on the other side of a deal replace represents and warrants with states. The benefit of doing so would be more than outweighed … Read More
Go here for information about my “Drafting Clearer Contracts” seminars for Thomson Reuters in Seoul (12 November), Tokyo (17 November), and Singapore (19 November). Go here for information about my other public “Drafting Clearer Contracts” seminars.
Last year, while I was at a prominent law firm to do a seminar, someone from the law firm emphasized to me that they don’t use standard templates. Instead, they want their junior lawyers to figure out for themselves what should be in a given contract. I thought of that when I read the following in Milgrim on Licensing, at § 10.00: … Read More
Over the years I’ve compiled the many confusing and wordy ways drafters have found to say may. Here’s another one: will be given the opportunity to (and its variant will have the opportunity to). Here are some examples from the great coal-ash pond that is the SEC’s EDGAR system: Each Tag Along holder will be given the opportunity to exercise their vested Options … Read More
This morning I saw the following tweet by @section_sign: https://twitter.com/section_sign/status/609300513239085058 No, I haven’t suddenly acquired an active interest in the politics of bicycling. Instead, I spotted ambiguity. Here’s a sentence from a benefit plan that exhibits the same ambiguity: If every member of the Committee does not meet the definition of “outside director” as defined in Code (S)162(m), … That conveys two … Read More
In addition to analyzing topics that are entirely new to me, part of what I do is fill small gaps in MSCD‘s coverage. So in that spirit, here’s a neat little gap-filler, fed to me by a law student. The case is IPE Asset Management, LLC v. Fairview Block & Supply Corp., 123 A.D.3d 883, 999 N.Y.S.2d 465 (2014) (PDF here), … Read More
For a while now I’ve been harping on about how courts should admit expert testimony on ambiguity. (For my most recent statement on the subject, see the bottom of this post.) But from private conversations, I’ve gotten the sense that even if admitting expert testimony on ambiguity makes sense, judges aren’t keen to do anything that would add to paperwork … Read More
Here’s how the overseas one-day and two-day “Drafting Clearer Contracts” seminars are shaping up through the end of the year: Bangkok, 6–7 August (with Marcus Evans): For more information, go here. Kuala Lumpur, 10–11 August (with Marcus Evans): For more information, go here. Doha, 18–19 October: This is still in the planning stages; details to come. London, 2 November (with University … Read More
I used to think that trade groups were a promising route to change. After all, they should have a broad perspective. They should be able to achieve economies of scale. And they should have resources. But I no longer take that for granted. Change involves determining that the current way of doing things doesn’t work as well as it should … Read More
Longtime readers will know that I have no time for the notion of “tested” contract language—instead of continuing to use confusing contract language because a court has had occasion to attribute meaning to it, I prefer to state meaning clearly. So instead of relying on caselaw to tell me how to draft contracts, I find caselaw mostly useful for the … Read More
