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
This post from last October contains my report card on Rocket Lawyer’s document-assembly confidentiality agreement. My conclusion? It stinks. In this recent post on his blog, Bill Carleton included a link to the “Document Factory Starter Kit” offered by the global law firm DLA Piper. Here’s how DLA Piper describes it: This Starter Kit will enable you to generate basic … Read More
A few days ago I uploaded a revised version of Koncision’s confidentiality-agreement template. Apart from glitches lurking in a few branches of the template’s copious decision tree, I changed how the template refers to duration of the obligation to keep information confidential. Anyone completing the previous version of the questionnaire was offered the following answers to the question regarding duration … Read More
Last December, I mothballed the AdamsDrafting blog and fired up The Koncise Drafter. If I were concerned about my stats, that move would have been a disaster—as it’s home to four years of my musings, the AdamsDrafting blog still gets about three times as many hits as The Koncise Drafter. But I’m not selling ads and don’t have to meet … Read More
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
