Thanks to this item on Lexology by Kimarie Cheang of Holman Fenwick Willan, I learned that earlier this year, in the case of KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] SGCA 16 (here), the Singapore Court of Appeal had considered the implications of an obligation to use “all reasonable endeavours.” The court surveyed relevant caselaw in Singapore, England, and … Read More
There’s style, and there’s substance, no? Well, not quite. Some drafting decisions don’t affect meaning. That includes all decisions relating to the look of a document. It also includes some decisions regarding wording. Witless archaisms such as witnesseth don’t affect meaning. And consider Acme may purchase the Shares and Acme is authorized to purchase the Shares. I recommend using the version … Read More
The construction industry was an early adopter of commoditized contract creation. In this 2006 post I mentioned the AIA Contract Documents, promulgated by the American Institute of Architects. It’s one of the best-known trade-group-sponsored document initiatives. Because the AIA Contract Documents are perceived to be developer- and architect-friendly, it gave rise to a competitor, ConsensusDocs. This post is on Contract-Automation … Read More
I suspect that I don’t read contracts like other folks. When I’m in let’s-analyze-contract-usages mode, I trawl through contracts looking at how drafters express a given meaning. When I’m working on templates, I mine the client’s current templates looking for what to adjust and what to replace. That’s different from reading a draft prepared by someone on your side of the transaction, … Read More
The act of creation is associated with the act of naming. That which is nameless doesn’t fully exist. I haven’t given a name to my approach to contract language, other than to refer to the result by, for example, brandishing the phrase “Drafting Clearer Contracts.” Similarly, I haven’t given a name to the current regime. Instead, I’ve limited myself to identifying its … Read More
[Updated October 14, 2014: Go here for a PDF copy. Incidentally, I haven’t yet received any feedback about this article, but I’m not surprised. I wouldn’t have expected to hear from anyone who endorses the approach reflected in English caselaw, as I think I’ve comprehensively debunked it.] The 30 September 2014 issue of the English periodical Solicitors Journal contains my article … Read More
The biggest conceptual obstacle to clearer contract language is the notion of “tested” contract language—the idea that if a court offers its interpretation of confusing contract language, we’re forevermore committed to using that confusing contract language to convey that meaning. But recently I’ve heard people discussing a related concept—whether a provision is “market”. A provision is “market” if it’s so … Read More
I wrote here about Shake, the app that allows you to “Create, sign and send legally binding agreements in seconds.” But this post isn’t about Shake. Instead, it’s about the following extract from this post about Shake for Android: Obviously, more templates would help. You could probably find quite a few recent law grads who are desperate for work who … Read More
In my seminars, I’ve encountered people who started out as litigators, then shifted to working with contracts. That caused me to wonder what that transition involves. Eric Hutchins, corporate counsel with the Cloud Legal Team at Oracle, is one such seminar participant. He was kind enough to have this exchange with me about his transition. If you’ve made such a … Read More
Longtime readers of this blog will be familiar with Glenn West. His articles on extra-contractual liability (here), consequential damages (here), and “no recourse against others” provisions (here) are all essential reading for anyone serious about understanding those topics. Well, break out the champagne, because Glenn has a new article out. This time it’s on fraud carve-outs in acquisition agreements; go … Read More
