Hot on the heels of my notion of “language of intention” comes a candidate for yet another new category of contract language: language of recommendation. Consider the following extract from a stock option agreement (emphasis added): As a result, the Company strongly recommends that the Grantee not rely on the information in this Appendix as the only source of information relating to … Read More
Recently I’ve been exploring the gray areas of categories-of-contract-language analysis. (For example, go here for my trial balloon regarding “language of intention.”) Well, it’s time to consider another such issue. In my seminars and my course at Penn Law, we consider a series of “before” and “after” examples designed to highlight categories-of-contract-language issues. Here’s one of those examples, drawn from … Read More
When you add verbiage to a contract provision not to change its meaning but to make it more emphatic, you’re indulging in “rhetorical emphasis.” Contract prose is better off without rhetorical emphasis, as contracts don’t serve to persuade. I’ve mentioned rhetorical emphasis plenty over the years; go here for a listing of posts on the old AdamsDrafting blog that mention … Read More
Reader Steven Sholk told me about this article on the phrase sole and absolute discretion that appeared last week in the New York Law Journal. It focuses on New York caselaw. Having written an article of my own on the implications of this phrase (available here), I was interested to see what the article had to say. But it doesn’t … Read More
Unsure whether you should be paying someone at the law firm of Preen & Strut $600 an hour to draft your contracts? Or uncertain whether a member of your in-house legal staff is doing a good job with your templates? Well, take the following quiz and all will be revealed! (In the quiz, the phrase “your guy” is gender-neutral.) A … Read More
I’ve written lots about represents and warrants (and representations and warranties), culminating in a series of posts a couple of years ago. See, in reverse chronological order, this post, this post, this post, and this post. With the last of those posts, I felt as if for the time being I’d said pretty much all I could say. And I felt … Read More
Last week I gave my “Drafting Clearer Contracts” seminar in Santa Clara. During a break, one of the participants asked me if I thought it matters in what order the parties sign a contract. More specifically, she’s concerned about sending out a contract drafted and signed by her company and getting back a fully signed copy with changes added by … Read More
The following language was at issue in a recent case before the Appellate Court of Connecticut, Loso v. Loso, 132 Conn. App. 257 (2011): The defendant agrees to pay for one-half the cost of Sarah’s college educational expenses for a four year degree net of scholarships or grants, subject to the limitation that said cost shall not exceed the tuition for … Read More
One function of recitals is to state, simply and succinctly, the purpose of the transaction. Different verbs can be used to accomplish that. When what follows is another verb, one traditional choice is desire to (and no, I don’t endorse use of WHEREAS in the following examples): WHEREAS, the Stockholders desire to set forth their agreement as to certain matters … Read More
In this recent post on IP Draughts, Mark Anderson said the following: Mostly, though, [contract format] is a mixture of logic and sentiment. Logic, in the sense that, in well-drafted contracts, the format will be helpful in finding the information that the reader requires, eg in the order of clauses, the use of headings and numbering, and so on. Sentiment, … Read More
