[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
Learning involves relying on others. It’s not remotely feasible for everyone to, uh, do all their own research. Instead, you have to rely on others who really have done research and written it up in a way that makes it accessible. But who do you rely on? The overwhelming majority of commentary out there isn’t reliable, or it’s lightweight. For … Read More
I’ve been working on an article on the word material, so that sent me back to my book The Structure of M&A Contracts. The book is due for an update, so I’d like to do a second edition sometime, one that makes it easier for people to buy the book! But I’ll use this post to revisit one point I … Read More
[This is my redo of this 20 November 2018 post. I decided I could do much better.] Let’s revisit this 2012 IPDraughts post, by Mark Anderson. It will allow us to consider some English contract-law terms of art. I’ll let you read Mark’s post for the background. The gist of it was that in a dispute over an allegedly defective … Read More
Courtesy of tipsters who DMed me on Twitter, I bring you Sutter Hill Management Corporation v. Mpire Capital Corporation, a case before the Supreme Court of British Columbia (here). Here’s the contract provision at issue: The Purchaser shall use commercially reasonable best efforts to satisfy the condition precedent set out in this Section 2.5 as soon as possible. Commercially reasonable … Read More
