Sometimes you just have to laugh. Or cry. In my current guise as soon-to-be-globetrotting contract nerd, I was looking at a contract from the Philippines. The first thing I saw below the title and above the introductory clause was this: KNOW ALL MEN BY THESE PRESENTS: “WTF!,” says I. I immediately turned to the SEC’s Edgar system, which told me … Read More
I noticed this post by Paul Stanfield on the Austin Technology Law Blog. The main point it makes is that if a customer wants to exclude “lost profits” from the damages that you, the seller, might be entitled to under a contract, you should make it clear in the contract that “lost profits” refers to profits on collateral business arrangements, not … Read More
I’m pleased to announce that in cooperation with Melbourne Law School I’ll be giving my “Drafting Clearer Contracts” seminar in Australia, in Melbourne on February 8 and in Sydney on February 10. For further information on the Melbourne seminar and details on how to register, go here; for further information on the Sydney seminar and details on how to register, … Read More
[Updated January 11, 2012, to tweak the analysis.] Let’s consider how the verb guarantee is used in contracts. (No, I’m not going to discuss guarantee versus guaranty. For that, go to this 2006 blog post on AdamsDrafting. Perhaps my most popular post evah. Go figure.) Everyone knows what the verb guarantee means. Here’s how Black’s Law Dictionary defines it: guarantee, vb. … Read More
I received the following note from longtime reader Scott Chalmers, a foreign legal consultant at King & Spalding’s Houston office who’s qualified in England and Australia: Ken, one drafting/legal issue that repeatedly comes up in negotiations between US and non-US lawyers is the use of the phrase ‘without regard to its conflict of laws provisions’ in the governing law clause. … Read More
Most of the posts on this blog involve some measure of subtlety, so it’s gratifying to encounter something entirely basic, namely a contract reference to the year 2012 that should have been a reference to the year 2011. The following is from this post on ESPN.com by Chris Mortensen and Adam Schefter: A dispute over contract language that affects seven fired Jacksonville … Read More
In this May 2011 blog post discussing the Texas Supreme Court’s opinion in Italian Cowboy Partners, I acknowledged that if you want to increase the odds of avoiding fraud liability for extracontractual statements of fact, it would be prudent to use “no reliance” language instead of just saying that Acme has made no representations other than those stated in the … Read More
Reader Patrick Grant, assistant general counsel of S & B Engineers and Constructors, told me about the new “anti-indemnity” law that the Texas legislature recently passed. Go here for the full text of House Bill 2093, but here’s the part that Patrick was interested in: Sec.A151.102. AGREEMENT VOID AND UNENFORCEABLE. Except as provided by Section 151.103, a provision in a … Read More
[Updated January 9, 2012, to reflect a change to my February 2011 post prompted by Vance Koven’s comment to this post.] In this February 2011 post I offered my version of a force-majeure provision. It included the following: For purposes of this agreement, “Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it … Read More
There’s no end to the surprises. Evidently, I need to get out more. In the immediately precedent post, the one about DLA Piper’s “Document Factory,” I said the following: The date I specified as the “effective date” was stated in the output document’s introductory clause as “January 01, 2012,” with the redundant zero. I assume that’s due to a limitation … Read More
