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The Illinois Appellate Court’s Problematic Take on the Traditional Recital of Consideration and “Successors and Assigns” Provisions

8 April 2013 by Ken Adams

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

Courts Are Citing MSCD

3 April 2013 by Ken Adams

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

Using “X” and “Y” to Refer to the Parties

30 March 2013 by Ken Adams

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

The 2002 ISDA Master Agreement Isn’t a Contract-Drafting Masterpiece

30 March 2013 by Ken Adams

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

The Delaware Supreme Court Tackles Industrial-Strength Syntactic Ambiguity

28 March 2013 by Ken Adams

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

“Suffer”

22 March 2013 by Ken Adams

In contracts, use of the word suffer comes in two flavors, silly and annoying. Silly First, silly—the intransitive use of suffer. When use to mean “to submit to or be forced to endure,” suffer is unobjectionable: I suffer from chronic insomnia. But it’s a bit much when used in contracts to mean “undergo, experience.” Oh, how Acme suffers! Usually the … Read More

My Discussion With the Chicago Style Q&A Regarding Capitalization of Words Denoting Political Divisions

20 March 2013 by Ken Adams

The Chicago Manual of Style is an essential resource. It’s useful even for contract drafters (see this 2012 post). But I’ve long had a quibble about its guidance on one small issue regarding capitalization of words denoting political divisions. So today I exchanged emails with the online Chicago Style Q&A—itself a great resource. If I understood it correctly, the interpretation … Read More

“Applicable Law” Refers to the Law at What Date?

20 March 201320 March 2013 by Ken Adams

Thanks to Jeff Ammon of the Michigan law firm Miller Johnson, I learned of the Sixth Circuit’s recent opinion in Kia Motors America, Inc. v. Glassman Oldsmobile Saab Hyundai, Inc. (copy here). Kia’s dealer contract with Glassman specified that “As permitted by applicable law, [Kia] may add new dealers to, relocate dealers into or remove dealers from the [Area of Primary Responsibility] assigned to … Read More

Here’s the First Review of the Third Edition of MSCD

18 March 2013 by Ken Adams

Go here for Mark Anderson’s review of the third edition of A Manual of Style for Contract Drafting. For regular readers of this blog and its predecessors, Mark will need no introduction. He’s an English solicitor and a leading IP lawyer; managing partner of Anderson Law LLP; and the man behind the IP Draughts blog.

“However So Described” and a Different Way to Handle Redundancy

17 March 2013 by Ken Adams

At last week’s seminar in Sydney, one of the participants asked me about the phrase however so described. I told her that I’d look into it; she probably didn’t expect that it would lead me to another way to handle redundancy. Redundancy has two sources. There’s what I’ll call rhetorical redundancy: when you throw in synonyms or near synonyms just … Read More

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