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Do We Really Need the Defined Term “Contract”?

1 June 2014 by Ken Adams

Last week I noticed this tweet by @BlakeReagan2: https://twitter.com/BlakeReagan2/status/472438086580707328 It has been a while since I’ve used contract as a defined term, so I grabbed the following examples at random from the U.S. Securities and Exchange Commission’s EDGAR system: “Contract” means all legally enforceable contracts, agreements, understandings, arrangements and commitments, whether written or oral, excluding Purchase Orders. “Contract” means any … Read More

Is Anyone Familiar with This Cross-Referencing Convention?

29 May 2014 by Ken Adams

At yesterday’s “Drafting Clearer Contracts” seminar in Aarhus, Denmark, for MHI Vestas Offshore Wind, one of the participants asked me whether I was familiar with the convention that has internal cross-references stated in initial capitals (Section 5.4) and cross-references to other contracts stated in all-lowercase letters (section 3.2 of the Distribution Agreement). I said I was unfamiliar with that convention, but that it … Read More

Notes from the Road: Aarhus, Denmark

30 May 201429 May 2014 by Ken Adams

I’m now cooling my heels in Copenhagen. I just came from Aarhus, Denmark. Let me tell you about that part of my trip. Tuesday, May 26 I arrived in Aarhus after an overnight flight via Amsterdam and Copenhagen. I went there to give an in-house “Drafting Clearer Contracts” seminar for MHI Vestas Offshore Wind, a manufacturer of wind turbine generators. … Read More

“Shall Indemnify and Keep Indemnified”

26 May 2014 by Ken Adams

There’s no end to the weirdness that drafters dream up. Evidently, it’s not enough that we have a choice between hereby indemnifies and shall indemnify (see this 2006 blog post). Recently I saw an additional variant, shall indemnify and keep indemnified. It appears in hundreds of contracts on the SEC’s EDGAR system. It’s analogous to shall inflate the balloon and keep … Read More

“Efforts” Standards More Onerous Than “Best Efforts”?

23 May 2014 by Ken Adams

The answer to the question in the title is obviously, “What the … !” But asking that question provides me with another stick with which to beat the notion, expressed in English caselaw (see this post) and newsletters put out by English law firms, that all reasonable endeavours represents a more exacting standard than does reasonable endeavours. In terms of semantics, … Read More

The Bad Things That Can Happen When You’re Sneaky

21 May 201421 May 2014 by Ken Adams

Yesterday’s “Drafting Clearer Contracts” seminar for the Utah State Bar included something new and different—an hour on professionalism and ethics. Legal ethics can be a narrow topic, but with the addition of “professionalism,” I allowed myself to expand the discussion to address different ways one can create problems for oneself in the contract process by being sneaky and the bad things … Read More

A Cheat-Sheet for Categories of Contract Language?

21 May 201421 May 2014 by Ken Adams

Today I did a “Drafting Clearer Contracts” seminar for the Utah State Bar. As with last year’s seminar in Boise for the Idaho State Bar (see this blog post), it was sold out. And it appears that a worthwhile time was had by, if not all, then at least those with whom I spoke. One of those in attendance was Mark J. … Read More

I’ve Just Invented a New Term: “Negotiation Theater”

15 May 2014 by Ken Adams

I just used in this post a phrase I coined half an hour ago: “negotiation theater.” It refers to the time that lawyers waste negotiating lawyers-only contract deal points that have no basis in reality. Some examples: Whether to neutralize “double materiality” (see this 2013 blog post). Whether to use reasonable efforts or best efforts. Or commercially reasonable efforts. Or reasonable … Read More

How to Turn “Reasonable Efforts” into What You Thought “Best Efforts” Was

16 May 201415 May 2014 by Ken Adams

OK, so we’re all agreed that best efforts promises more than it can deliver—to avoid confusion and avoid wasting time in negotiation theater, use just reasonable efforts. You don’t agree? Oh, I think you’ve come to the wrong place; go here for the Flat Earth Society. Relax! I’m joking. To show you that I feel your pain, I’ll try once … Read More

Caesars Might Have $450 Million Riding on an “And”

15 December 201514 May 2014 by Ken Adams

Ah, what would life be without disputes over and and or! Here’s a fresh one (thanks to cousin Joshua Stein for alerting me) that arose in connection with a series of transactions that freed Caesars Entertainment from having to guarantee a portion of the $18 billion of debt of its subsidiary Caesars Entertainment Operating Co. As a result, investors lost something like $450 million on … Read More

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