Dear Mr. Bezos: I noted with interest the contract providing for your acquisition of the Washington Post. (Go here for a PDF copy.) Whereas others have considered the substantive implications, I limited myself, as usual, to the drafting. I skimmed the contract and wasn’t surprised to conclude that it leaves something to be desired. Why am I telling you this? Because … Read More
Should a services agreement provide for a term? It depends. Imagine that Acme engages me, as an independent contractor, to service every Sunday the fleet of Segways at Acme’s headquarters. Acme asks me to sign a contract, which provides for a term of one year. Including a term makes sense, in that having Acme instead make an open-ended commitment would … Read More
Via @CharlesHGreen I learned of this 2006 post by David Maister, an authority (now retired) on managing professional service firms. The title is “Why (Most) Training Is Useless,” and much of what it has to say applies to the training I provide. The Limited Value of Stand-Alone Training Consider the following extract: Unfortunately, training and other kinds of meetings and conferences … Read More
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
