The word actively can join the long list of useless—or at least mostly useless—words used on contracts. In particular, it often seems that actively is in effect used just to mean the opposite of passively. That’s redundant, given that actively is always used with a verb that connotes action. Consider the following examples from EDGAR: Liens for taxes not yet delinquent … Read More
Earlier this month I unleashed the following tweet: Love it when contracts exclude both "direct" and "indirect" damages (usually with a bunch of other stuff). That excludes ALL damages! — Ken Adams (@AdamsDrafting) January 10, 2014 So I noted with interest the opinion of the Texas Court of Appeals in Innovate Technology Solutions, L.P. v. Youngsoft, Inc., 05-12-00658-CV, 2013 WL 6074126 … Read More
I was surprised to notice that the first two Amazon reviews of the third edition of MSCD (here) mostly complain about the Wire-O binding. I’m a little perplexed, as I’m firmly of the view that the binding makes the book a lot easier to use. This was thrashed out on the blog in 2008, and I include a link to that … Read More
A rogue comment by noted anarchist A. Wright Burke, M. Phil., in this post got commenters contemplating alternatives to using initial capitals to designate defined terms. In the process, Mark Anderson posted the following comment: A German: English legal translator recently asked a similar question on IP Draughts. As German nouns are capitalised, they though this was not a useful … Read More
Via prolific tipster Steven Sholk, I learned of this post, by Nathaniel Grow, on Sports Law Blog about baseball player Alex Rodriguez’s legal maneuvering in response to his being suspended by Major League Baseball for having taken performance-enhancing drugs. Here’s the part that caught my eye (hyperlinks omitted): However, as the arbitration decision reveals, Rodriguez’s suspension was not based on … Read More
If I argue that a particular contract usage can create confusion, it’s nice when I can point to a court opinion that inadvertently confirms as much. So I was delighted when cousin Joshua Stein sent my way one such opinion, 383 Madison LLC v. The Bear Stearns Companies, Inc., a 2008 New York Supreme Court slip opinion (here). It involves … Read More
If there’s anything worse than drafting confusing contract language, it’s making a mistake that results in a provision conveying a meaning that puts your client in a deep, expensive hole. That came to mind last week, while I was in Montreal for a public “Drafting Clearer Contracts” seminar. I had the opportunity to get together with Kevin Kyte, a partner at … Read More
I noted with interest this article in Corporate Counsel by Kevin Jacobs and Benjamin Sweet, of the law firm Baker Botts. It’s entitled “‘Force Majeure’ in the Wake of the Financial Crisis.” I recommend that you read the article, but here’s the gist of it: Thus far, courts continue to resist applying this contractual provision to even the most severe economic … Read More
Sometimes it’s left to me to address the big questions. Consider the defined terms SoW (used to meaning a statement of work issued under a particular contract) and MAC (used to mean a material adverse change in something or other). (MSCD 9.73 recommends that you use Material Adverse Change as the defined term, not MAC, but MAC provides a convenient … Read More
A client recently suggested that I add a mediation provision to a master services agreement that I’ve been preparing for them. While pondering that idea, I happened upon this item in a newsletter by the law firm Smith, Gambrell & Russell, LLP. (Why no author specified?) It captures why I ultimately recommended that we not include a mediation provision. Here’s the … Read More
