Currently on my nighttable is Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, by Steven Davidoff. Steven is a professor at the University of Connecticut Law School (click here for his faculty bio page) and is the New York Times’s “Deal Professor.” Before teaching, he practiced for ten years with Shearman & Sterling in its … Read More
Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses the concept in the negative. … Read More
Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.) The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas Court of Appeals, Third District. … Read More
[Updated April 17, 2013: For my more recent take on this, see this July 2012 post.] In MSCD 12.134 and in these blog posts, I recommend that you rid your contracts of the phrase indemnify and hold harmless. Most lawyers unthinkingly use indemnify and hold harmless as synonyms. And I’ve found that lawyers who instead think those concepts can be … Read More
Through the contract-automation grapevine I heard about Kingsley Martin, president of KIIAC LLC, a company using proprietary software to help customers analyze contract models. Kingsley was kind enough to speak with me about KIIAC and show me how the software works. It’s sophisticated and intuitive, and I think it meets a real need, so I was happy to turn my … Read More
I’ve written before about contract-lifecycle-management (CLM) software. (Click here for some general thoughts on CLM; the ACC Docket article I co-authored also discusses CLM.) I’m pleased that this post allows me to revisit the topic. During a trip to Switzerland a couple of years ago I met Chris Craddock, the marketing director of Symfact, an increasingly prominent CLM vendor. Thereafter … Read More
In an exchange of emails this evening, my correspondent inadvertently used “indemnitor” when he meant “indemnitee.” It’s in order to avoid just such confusion that I recommend in MSCD 1.72 that you not use as defined terms for party names any paired defined terms that differ only in their final syllable, such as Mortgagor and Mortgagee. Given that one uses … Read More
[Updated March 2, 2015: For my most recent take on this subject, see this article.] I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article. … Read More
[Updated October 1, 2008] Consider the following provision: During the term of this agreement and the following 24 consecutive months, the Consultant shall not … In this context, the word consecutive is redundant. The same applies to use of consecutive with other units of time. But consider this provision: The Employee shall spend two months every year in Acme’s Budapest … Read More
Here’s what Garner’s Modern American Usage has to say about anniversary: anniversary (= the day of the year on which an event occurred in a previous year) is today used informally to denote a milestone in months or even weeks. That usage has become increasingly common, perhaps because there is no convenient equivalent for terms shorter than a year (milestone … Read More
