Reader @mpietruczak told me about this newsletter by Duane Morris. It’s about the decision of the U.S. District Court for the Northern District of California in Powertech Tech. v. Tessera, Inc. (PDF copy here). The court interpreted the phrase “non-breaching party” in a way that’s inconsistent with how I’ve used it. The issue was whether under the contract at issue one party could … Read More
I noticed that the National Security Agency and the Department of Homeland Security have finally acknowledged that merchants who use images and names of those agencies on parody merchandise aren’t violating any federal laws. How big of them. Go here for Public Citizen’s press release. But what’s of particular interest to pointy-headed me is the settlement agreement between the agencies and Dan … Read More
This week I start offering one-on-one coaching to someone from the procurement department of a major company. It will consist of eight one-hour video-chat sessions, one every couple of weeks. And for the next six months I’ll be available to answer that person’s questions, by video chat, phone, or email. I’ll let you know how it goes. Different people learn … Read More
A contract I’m reviewing contains, as appendix A, a definition section. But it’s not referred to as a definition section. Instead, the heading is “Glossary of Terms.” Here’s how Wikipedia describes glossaries: A glossary, also known as a vocabulary, or clavis, is an alphabetical list of terms in a particular domain of knowledge with the definitions for those terms. Traditionally, a glossary appears at the end of a book and includes … Read More
Today I found myself on the website of the Australian Department of Immigration and Border Protection, looking to apply for a visa. (My Australia “Drafting Clearer Contracts” seminars are next week; go here for links to more information.) While on their website, I noticed the following graphic: Interesting, I says to myself. In an Australian passport, the day and month … Read More
Updated 5 July 2022: By all that is holy, ignore this post and instead consult this 2022 post! Today I encountered in a contract the following use of offset: Unless it has notified Company otherwise, the Vendor shall offset the Search Fees payable by the Company under this Agreement against the Vendor’s payment obligations to Company under this agreement. To asses the … Read More
Today I encountered in a contract the following use of revoke: The Vendor may revoke this license at any time upon notice to the Company. For purposes of a license granted by contract, I recommend using instead terminate. Here’s the relevant part of the Black’s Law Dictionary definition of revocation: 1. An annulment, cancellation, or reversal, usu. of an act … Read More
I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget the confusion over a “hereunder”? (See this post). Or over “except as provided below”? (See this post.) Well, I have another treat for you. (Yes, I know, I’m too generous.) The case is Bayerische Landesbank, New … Read More
It’s routine for one post to beget another. My post on shall not negligently (here) was prompted by the following contract language: Company will not, and will not knowingly or negligently allow any third party to [do various things]. In a comment, David Ziff considered the implications of using just shall not allow, with negligently omitted. I agree with David. On … Read More
While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following: Company will not, and will not knowingly or negligently allow any third party to [do various things]. But does it make sense to impose an obligation on someone not to act negligently? Is that equivalent to imposing an obligation … Read More
