[Don’t bother reading this post! It has been superseded by this post.] I was pleased to see that today D.C. Toedt posted on his blog this item about defining gross negligence in a contract. It’s something that I’d idly thought about before consigning it to a far corner of my mind. In his post, D.C. considers the caselaw regarding the … Read More
For the heck of it, let’s go back to basics. Generally, no purpose is served by stating, in the introductory clause or elsewhere, that the parties intend to be legally bound. The approach under U.S. law is summarized by section 21 of the Restatement (Second) of Contracts, which states that “Neither real nor apparent intention that a promise be legally … Read More
The reader who goes by the name A. Wright Burke, M. Phil., told me about this article by Edmund H. Mahoney in the Hartford Courant. It describes how in Pac. Employers Ins. Co. v. Travelers Cas. & Sur. Co., 3:11CV924 MRK, 2012 WL 3202934 (D. Conn. Aug. 3, 2012) (PDF copy here), the judge describes as “gibberish” the insurance-policy provision at issue … Read More
Today I received an email from longtime blog reader Elliot Miller inquiring about concedes that. I hadn’t previously encountered that usage, so of course I searched for it on the SEC’s EDGAR system. If you exclude its use in conditional clauses (If Acme concedes that …) and language of discretion (Acme may concede that …), where it plays a supporting … Read More
Here are my latest thoughts on an interesting categories-of-contract-language wrinkle discussed in MSCD 2.155–156: You can express prohibition by means of an exception to language of discretion, but doing so could be a source of confusion, depending on how you do it. Consider the following: Widgetco may sell one or more of the Vehicles except the 1965 Ford Mustang. As a … Read More
Get a load of the following: 10.16 Intervention by Parent. Now unto these presents comes Dynacq Healthcare, Inc., a Nevada corporation, which represents that it owns all of the membership interests of Seller. “Now unto these presents”! It sounds like Shakespeare! “Now is the winter of our discontent …” And how about this: CERTIFICATE OF EXISTENCE To Whom These Presents Come, Greeting: I, TODD … Read More
Some readers may have noticed that in this post discussing problematic terms of art I don’t use the phrase “magic words.” I’ve long used “magic words” as a label for dysfunctional terminology; see this 2010 blog post. But while writing my post on terms of art, I realized that although “magic words” has real snark value, it’s otherwise unhelpful. So … Read More
[This post replaces this previous post, which I deleted, except for the comments. Very occasionally I write something, post it, and then promptly realize that the topic in question is more complex than I had bargained for. That happened with my previous post. I revised it once, but realized that wouldn’t do the trick, and revising it again seemed a … Read More
Having just responded to a traditionalist asserting that I’m flirting with disaster by deviating from “tested” contract language, I was pleased to receive the following email from Andrew Mitton, a lawyer in private practice in Anchorage, Alaska: I’m a faithful reader of your blog and regularly refer to your Manual of Style. I recently redrafted some stock purchase documents to … Read More
I culled the following from a security agreement on EDGAR: … SwissINSO hereby grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to the Secured Party a lien on and security interest in, all of SwissINSO’s right, title and interest in, to and under, all of the property and assets currently owned by or owing to, or hereafter acquired by or … Read More
