A couple of months ago I did this blog post about the redundant reference-point exception in the bringdown condition. Today we revisit the bringdown condition to consider an issue involving how the bringdown condition is modified by materiality. The bringdown condition allows one side to use inaccuracy in the other side’s statements of fact (traditionally referred to as representations and … Read More
The only way to escape contract dysfunction is to provide those who work with contracts an alternative to the copy-and-paste machine. The simplest and most effective alternative would be a subscription-based service offering automated contract templates. For as long as I’ve been researching contract language, I’ve wanted to create such a service. That’s no accident: I’ve always had in mind … Read More
Check out the screenshot above. By saying what time zone doesn’t apply for determining the date of the contract (New York time), it in effect says that Macau time (I assume) applies. It would have been clearer to say “(Macau time)” after the date of the contract, but that’s a quibble. So, is it a good idea to say which … Read More
If you’re involved in organizing your firm’s summer program and are wondering what training activities you might offer, you could do worse than sign them up for their own series of my online course Drafting Clearer Contracts: Masterclass. For more about Masterclass, go here; for testimonials, go here. If you’d like to discuss the possibilities, contact me.
[Updated 7:30 a.m. Eastern Time, 25 March 2022] Today in a session of my online course Drafting Clearer Contracts: Masterclass, we found ourselves discussing the phrase except to the extent prohibited by law (and its variants). It’s used to modify obligations. Isn’t it redundant?, someone asked. If you don’t perform the obligation because to do so would be against the … Read More
I’ve just posted details of two new series of Drafting Clearer Contracts: Masterclass: Masterclass (23) begins on 11 May 2022 at 9:00 p.m. Eastern Time (US and Canada), which would work well for participants in Australia. And China. And Singapore. And Japan. And the Philippines. You get the idea. Masterclass (24) begins on 16 June 2020 at 11:00 a.m. ET. … Read More
I’m in the habit of importuning people. (Importune means, according to one dictionary definition, “harass (someone) persistently for or to do something.”) I don’t importune just anyone though—I limit it to experts in subjects that have a bearing on contract language. And perhaps a better word is supplicate. Those whom I importune, or supplicate, don’t necessarily respond adversely. For example, … Read More
Readers alerted me to an article in the journal Cognition entitled Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language (here). It’s also the subject of this item in MIT News. This article tells us nothing we don’t already know. It’s by Eric Martinez, a recent law school graduate and licensed attorney who is now a graduate student … Read More
Last week, during a session of my online course Drafting Clearer Contracts: Masterclass, out of the blue I saw this in the chat window: I started using “states” and found nobody minds. That’s one way real change happens—when no one notices. I followed up with Julianne, and here’s what she said: I had often wondered why drafters use difficult or … Read More
Although no one publicly challenges my recommendations (see this 2018 blog post), I’ve occasionally encountered, in writing and in private exchanges with lawyers and law-school faculty, general arguments for sticking with traditional contract language. Here’s my taxonomy of those arguments. Claiming That Traditional Contract Language “Works” One such argument is that traditional contract language “works.” (See for example this 2017 … Read More
