The word actually doesn’t have many friends. Commentators think it’s overused; see this article by Claire Carusillo in the New Republic and this article by Heidi Stevens in the Chicago Tribune. But in contracts, the problem with actually goes beyond overuse. In general discourse, actually, meaning “in fact,” signals difference of opinion or disagreement over facts. Contracts aren’t for debating, so as a … Read More
There’s always something that needs fixing. Yesterday, I was inclined to carve on my forehead, in mirror-script, “Stop using limitation instead of limit!” Consider the following from Garner’s Modern American Usage: limit; limitation. A limit is whatever marks an end to something, as in city limits or speed limit. A limitation is the extent of one’s capacity or a constraint that … Read More
When you refer to something in a contract, the meaning can vary depending on the timeframe. For example, MSCD 13.4 and this 2009 post discuss how a contract reference to “subsidiaries” could mean subsidiaries at the time of signing or at any given time in the future. It’s best to avoid confusion over the intended meaning by making it explicit. … Read More
I received the following inquiry from longtime reader Vance Koven: I’ve been trying to find someplace in MSCD or your blog where you address the couplet “in and to,” which usually dribbles out after “right, title and interest” in referring to, say, a claim to or a license of intellectual property. Came up empty, yet I was sure it was … Read More
In contracts, language of declaration is used by parties to declare facts. And as I say in MSCD 3.270, “Language of declaration allows parties not simply to assert facts but to be seen to be asserting them—without the verb, it wouldn’t be clear who is making the assertion.” Language of declaration comes in two flavors, depending on whether the fact … Read More
One of the categories of contract language is language of recommendation. It’s discussed at MSCD 3.332, and I introduced the idea in this 2011 post. Obviously enough, you use it when one party is recommending something to another party: The Company recommends that the Participant consult with his or her personal advisor …. I’ve always though that language of recommendation … Read More
Here’s an issue I’ve occasionally pondered: What if you prepare a template for one client in a given industry, and then another company in the same industry asks you to prepare the same kind of template for them? It’s not a matter of copyright. Here’s the relevant extract from my article Copyright and the Contract Drafter (here): [T]he level of … Read More
I’ll be in Denmark the last week in May to do an in-house seminar. If you’re located in Scandinavia and would like to discuss having me do a “Drafting Clearer Contracts” seminar for your organization while I’m in the region, you’d find me particularly … flexible.
It’s easy to find on Twitter people eager to embrace as a “tipping point” every questionable come-to-us-for-your-contracts offering. Express skepticism and they might invoke Clayton Christensen, much as one would brandish a crucifix, or garlic, or whatever, at a vampire. (Your ears burning, @jordan_law21? :-) ) The buzzword is “disruption.” But some people are pushing back at the notion of … Read More
The Michigan Bar Journal’s “Plain Language” column recently celebrated its thirtieth year. Joe Kimble, its longtime editor, wrote this piece marking the event. Congratulations to Joe and to the Journal. They’ve provided a valuable service. My contribution to the “Plain Language” column was a two-part article published in 2002. It was the second article I ever wrote. It’s long been … Read More
