You see confirms used to introduce statements of fact in a contract. Here are two examples from EDGAR: Each Loan Party (i) confirms that prior to, as of, during and following the funding of the Commitment, each Loan Party was not, and continues not to be, “insolvent” as that term is defined in Section 101(32) of the United States Bankruptcy … Read More
I was recently reminded of Exemplify, “a new breed of research tool for determining market standard language and terms in transactional law practice.” The best introduction appears to be this post by David Hobbie, aka @KMHobbie, on his Caselines blog. Here’s how David describes Exemplify: It is a browser-based clause reference and creation tool that compares clauses you provide with clustered iterations … Read More
I recently saw the following in a book: The words “exclusion” and “disclaimer” are sometimes used interchangeably in warranty provisions, but an important legal distinction exists between them. The word “exclusion” or “excluded” used with respect to implied warranties means that those warranties implied by law are denied entry or admission into the agreement. In other words, if implied warranties … Read More
MSCD 17.16 deals with the phrase to the extent that. It makes the simple point that although to the extent that is appropriate when the degree to which a provision applies depends on some variable, drafters often use to the extent that when if would be more appropriate. Here are three examples: To the extent that [read If] an Award is intended … Read More
In yesterday’s post I wrote about how the Appellate Court of Illinois saw value in useless contract language, namely the traditional recital of consideration and “successors and assigns” provisions. But that post might prompt the following response: “The fact that the court saw value in the traditional recital of consideration and ‘successors and assigns’ provisions means that I should always include such … Read More
The fog generated by traditional contract language is thick enough that I find myself periodically revisiting issues that I’ve tackled previously. In that vein, I’d now like to consider an odd opinion that reader @21law told me about. It involves those two chestnuts, the traditional recital of consideration and “successors and assigns” provisions. The opinion in question is Urban Sites of Chicago, … Read More
Last week I mentioned in this post that the Delaware Supreme Court had cited A Manual of Style for Contract Drafting. Well, yesterday I noticed that in an opinion issued this week (here) the Eighth Circuit Court of Appeals had cited it too, the issue in this case being where to place the defined-term parenthetical when you create an integrated … Read More
Note use of the defined terms “X” and “Y” in the following, from the 2002 ISDA master agreement (discussed in this post): If a party is so required to deduct or withhold, then that party (“X”) will:— (1) promptly notify the other party (“Y”) of such requirement; (2) pay to the relevant authorities the full amount required to be deducted … Read More
Recently someone reminded me of the ISDA master agreement, the widely used form of master contract for over-the-counter derivatives transactions. It was last updated in 2002, and after I found a copy of the 2002 version online here, I had a look at it. My conclusion? The drafting is pretty ragged. No surprise there—I’ve looked at a few examples of … Read More
Regular readers will recall that syntactic ambiguity arises from uncertainty over what part of a sentence a given phrase modifies, or what part of a phrase a given word modifies. (If you want a bellyfull of syntactic ambiguity, search for “syntactic” using this blog’s search function.) It can sometimes seem as if syntactic ambiguity is a curiosity rather than something … Read More
