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
Just a reminder that on October 16 at 14:30 BST (9:30 EDT), I’ll be giving for eCPD Webinars a webinar entitled “The Perils of Translating International Contracts.” For more information, go here. Thereafter it will be available in recorded form.
The Korean periodical the Legal Times has published the first part of my article English-Language Contracts: Reducing the Clutter and Confusion (go here). [Update: Go here for the second part.] What’s novel about this article is that it’s in Korean. It had to be, if I wanted it published in a Korean legal periodical. My thanks to Jacki Noh for the translation. … Read More
A reader who identified himself as “a faithful reader from Northern Virginia” asked me about use of the word faithfully in contracts—yet another usage that had somehow escaped my scrutiny. In trawling for faithfully on the SEC’s EDGAR system, I saw that it’s used primarily in provisions stating an employee’s principal obligation under an employment agreement: Executive shall devote her best … Read More
