A longtime reader had the following to say in an email to me: I use some outside counsel that I think are stellar brief-writers. Even their first drafts are generally very good. Then I get a draft settlement agreement or agreed protective order from them and groan. Why do they write contracts so badly? The prosaic reason is that they don’t write agreements … Read More
Family! One day you’re unaware that they exist, the next day they’re hocking you relentlessly. I’m speaking of course about Joshua Stein, my newfound second cousin once removed, recently introduced to readers of this blog in this post. I was minding my business late one night when an email from Joshua invaded my inbox. Here’s the meat of it: I … Read More
I’m not a fan of kitchen-sink definitions—definitions that include a grab-bag of items, not all of which belong together. Consider the following definition of “Claim,” culled from the grand flea market that is EDGAR: “Claim” means all losses, claims, damages, penalties, judgments, liabilities and expenses of any kind (including, without limitation, reasonable and documented out-of-pocket costs of investigation and defense thereof and reasonable … Read More
[Updated August 9, 2013: I bow to the wisdom of the commentariat! “Acme shall purchase” it is.] Acme and WidgetCo enter into a contract providing for Acme’s purchase of 1,000 widgets. WidgetCo delivers the widgets to Acme, along with an invoice. Acme pays the invoice. In that scenario, when does Acme purchase the widgets? I propose having the contract say, … Read More
I’ve been thinking about cognitive dissonance. Here’s some of what Wikipedia has to say on the subject: The theory of cognitive dissonance in social psychology proposes that people have a motivational drive to reduce dissonance by altering existing cognitions, adding new ones to create a consistent belief system, or alternatively by reducing the importance of any one of the dissonant elements. Cognitive dissonance is the … Read More
I had a look on EDGAR for contracts that specify that a given choice is to be made by a coin toss (or “flip”). For the most part, those that provide for such a mechanism don’t get specific. Here’s an example: After a coin toss to determine who makes the first strike, the parties shall strike names from the list alternately until the … Read More
Here’s what MSCD 13.761–62 has to say about willful and willfully: As it’s usually used in contracts, the word willful, as in willful misconduct, is not only vague but also ambiguous. It means intentional,” but drafters usually don’t make it clear whether the focus is on the party’s action or on the consequences of the party’s action—it’s possible to act intentionally without intending to … Read More
I apologize for these repeated non-thrilling updates, but word is filtering in that although MSCD is available in, for example, the UK iTunes store, it isn’t available in other non-U.S. stores: Russia! New Zealand! Very annoying. The publisher is trying to figure out what the problem is.
I’ve decided that use of represents and warrants is the litmus test in the battle for clear contract language. That’s why I’m always game to chime in on the subject. I had an opportunity to do so today, by posting this comment to an article by Drew Hasselback on the website of the Financial Post, a section of the Canadian publication … Read More
Today I happened to consult the Black’s Law Dictionary definition of ipso facto. Here it is: ipso facto (ip-soh fak-toh). [Latin “by the fact itself”] (16c) By the very nature of the situation <if 25% of all contractual litigation is caused by faulty drafting, then, ipso facto, the profession needs to improve its drafting skills>. I was tickled by the example provided. Seems logical to … Read More
