In this post I quote Tim Hadley’s email to me regarding how the other side to a transaction responded to his MSCD-inspired drafting. An interesting additional aspect to Tim’s interaction with counsel representing the buyer was the cover note he added to the draft. Go here to see a PDF copy. Tim was prompted to add his cover note by … Read More
For purposes of implementing clearer contract language and a more efficient contract process, change at the level of the organization allows change to happen more quickly. But given that inertia holds sway at most organizations, I suspect that change is mostly being implemented by individuals, whether operating on their own or within organizations. Last week I encountered an example of … Read More
Isaac Newton defined inertia in his first law of motion. Here’s how his Philosophiæ Naturalis Principia Mathematica describes inertia: The vis insita, or innate force of matter, is a power of resisting by which every body, as much as in it lies, endeavours to preserve its present state, whether it be of rest or of moving uniformly forward in a straight line. If I … Read More
There’s been a lot of chatter recently about the relative prospects of traditional law firms (“BigLaw”) and competitors such as Axiom (“NewLaw”). Much of that discussion was prompted by this post by George Beaton, an Australian consultant. It’s a discussion that I’ve had no trouble steering clear of. That’s because as I see it, there’s nothing much to choose between … Read More
I’m delighted to announce that on 8 April 2014 I’ll be presenting a public “Drafting Clearer Contracts” seminar hosted by SAP, a world leader in enterprise software and software-related services. It will be held at SAP’s headquarters in Walldorf, outside of Heidelberg, Germany. Earlier this year I did seminars in Hamburg and Copenhagen hosted by ECE, the shopping-center developer, and Maersk … Read More
MSCD explains as follows how using the word notwithstanding in a contract can create problems: For one thing, notwithstanding operates remotely on the provisions it trumps; readers could accept at face value a given contract provision, unaware that it is undercut by a notwithstanding contained in a different provision. Furthermore, although a notwithstanding clause that refers to a particular section … Read More
The implications of using either or both of the phrases arising out of and relating to is a topic of perennial interest. (For example, see this post, this post, and this post.) So today an article in Corporate Counsel entitled 3 Pitfalls in Contractual Choice-of-Law Provisions (here) caught my eye. It’s by two partners and an associate at McDermott Will & … Read More
Behold what I just found washed up on the shores of the SEC’s EDGAR system: PLAIN ENGLISH WARRANT AGREEMENT This is a PLAIN ENGLISH WARRANT AGREEMENT dated May 22, 2008 by and between RELYPSA, INC., a Delaware corporation, and TRIPLEPOINT CAPITAL LLC, a Delaware limited liability company. What the … ! First off, if you want your contract to be in plain English, then make … Read More
Last week I read an organization’s internal analysis of efforts provisions, based on a handful of articles on the subject. According to this analysis, those articles suggest that Delaware courts have held that best efforts represents a more exacting standard that does reasonable efforts. I wasn’t aware of that. MSCD chapter 8 contains what I like to think is the clearest and … Read More
I keep plugging away, inexorably, to further develop the body of knowledge that makes its way into A Manual of Style for Contract Drafting. But I’m starting to pay more attention to inertia, that unavoidable fact of my professional life. Stripped of any delicacy, here’s the exchange I routinely have with different kinds of organizations: Me: Your contracts … Read More
