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
I’m gearing up for my November seminars in Seoul, Singapore, and Kuala Lumpur (more information here), and in Abu Dhabi (more information here). I’m particularly looking forward to my visit to Seoul, as it will be my first visit. I thought it appropriate to get a sense beforehand of what the contract-drafting life is like for Korean lawyers. So I … Read More
Following up on my post about the date that is (here), here’s another bit of clutter that occurs in references to time—the phrase during the period. Like the date that is, it occurs in more than 10,000 contracts filed on EDGAR in the past year. Here are some examples, as tweaked by me: The Partnership will furnish to each Underwriter, … Read More
The phrase the date that is—as in before the date that is, after the date that is, no later than the date that is, and so on—is almost always clutter and can be surgically excised. Nevertheless, it occurs in more than 10,000 contracts filed on the SEC’s EDGAR system in the past year. Here are some examples dredged from EDGAR, … Read More
In response to a cri de coeur from @FlemingMF, in this 2009 post I introduced a notion aimed at preempting pushback from traditionalists bewildered by clear contract language. I suggested that when you send out a first draft that complies with MSCD, you could include a cover note asking that the other side refrain from making comments that don’t pertain … Read More
In the course of revising a draft contract, I encountered the following; Upon occurrence of a Change in Law or a Force Majeure Event that adversely affects the Seller’s performance under this agreement, the Buyer and the Seller shall negotiate in good faith whether to issue a change order addressing the effect of those circumstances and the terms of any … Read More
