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
Via @BrianStewartOH I learned of this article in the Washington Post about a contract between Alabama State University and its new president. The contract contains the following provision: For so long as Dr. Boyd is President and a single person, she shall not be allowed to cohabitate in the President’s residence with any person with whom she has a romantic relation. … Read More
Here’s an odd little usage: the date notified. I first saw it in section 1.1.3.2 of the FIDIC contract I discussed in this post (emphasis added): “Commencement Date” means the date notified under Sub-Clause 8.1. Here are some other examples from that den of iniquity, the SEC’s EDGAR system: Each Lender shall make available to the applicable Issuing Bank an … Read More
The holidays are over, and I’ll soon be heading out on the road. Here are the public “Drafting Clearer Contracts” seminars scheduled for the next few weeks: January 17, Montreal, QC February 17, Melbourne, Australia February 18, Canberra, Australia February 21, Sydney, Australia I’ll be in Kuala Lumpur on February 24–25 for a two-day seminar, and on March 27 I’ll be … Read More
Cousin Joshua Stein pointed out to me this post on Above the Law. It’s by Keith Lee, who has his own site, Associate’s Mind. Keith’s post is about the perils of hasty change: Put simply, don’t ever take a fence down until you know the reason why it was put up. Policies and procedures that are in place are likely … Read More
On Tweetdeck, I have a column for tweets that contain the words “contract” and “drafting.” From the tweets that show up there, every so often I learn about stuff that I might otherwise have missed. For example, today I saw the following: New Alert: First Circuit's lesson on necessity of precision in loan contract drafting http://t.co/OGhw94XOPB — Tim Durken (@TDurken) … Read More
This week Richard Kopf, a senior U.S. district-court judge, announced in this post on his blog, Hercules and the Umpire, that he wouldn’t be writing anything further for the blog, which he began in February 2013. For more about Judge Kopf and his blogging, see this WSJ article and this ABA Journal article. In a comment to his farewell post I said, perhaps rather … Read More
