M&A Drafting: Double Materiality Doesn’t Exist

I’ll now revisit something I last wrote about in 2013: double materiality. Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified by materiality: The Seller’s financial records contain no inaccuracies. The Buyer’s obligation to consummate the transaction contemplated by this agreement is subject to satisfaction of … Read More

Excuses for Sticking With Traditional Contract Language

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

Overrated: Litigators As a Source of Contract-Drafting Advice

Last week I tweeted this, or something close to it: “When I want authoritative contract-drafting advice, I look to litigators.” I was aware that it was unclear whether I was being sincere or snarky. After a few hours, I decided that being gratuitously confusing was unhelpful, so I deleted the tweet. But the replies to my tweet remain. Some endorse … Read More

Masterclass: Some Early Feedback

This past week I wrapped up the first three series (apart from trial series) of my new online course Drafting Clearer Contracts: Masterclass. On thing that’s clear is that for many people, pandemic life is hectic. I ended up moving several people to a later series because of some crisis or other. And plenty of people missed sessions for various … Read More

Another Conversation with Mark Anderson

Ken: I’m here with Mark Anderson, an English lawyer who specializes in IP transactions. He’s also a blogger and the co-author or editor of too many books related to contracts. I’ve mentioned him plenty on my blog, and we’ve done some interesting stuff together—just search for his name on my blog. Mark: I see you exhumed that photo from 2014. … Read More

Why Are Templates Bad?

Recently I noticed Mark Anderson’s post entitled Why Do We Tolerate Bad Templates? Spoiler alert: Mark says it’s because people like what they’re used to and because they assume that if they haven’t encountered problems yet they won’t in the future. Bad I’ll now explore the assumption underlying Mark’s post—that many, or most, templates are bad. Is that the case? … Read More

Book Review: “Garner’s Guidelines for Drafting and Editing Contracts,” by Bryan A. Garner

Bryan Garner is a big name in legal lexicography, litigation writing, and guidance on general English usage. He has a new book out, on contract drafting. It’s called Garner’s Guidelines for Drafting and Editing Contracts, and it’s not good. But first, why write a review? Because using any reference work requires a leap of faith, and book reviews help readers … Read More

Paying a Price for Following the Herd in Selecting Contract Usages (Featuring “Promises to Pay”)

Unless you’re unlucky enough to be riding the copy-and-paste train, contract drafting involves making choices. Lots of them. When I redo a company’s template, it can feel like I’m in a slow-motion version of a first-shooter video game, facing in not-so-quick succession an endless barrage of decisions. I addressed just one such decision in a recent tweet: Anyone want to … Read More

Always Be Learning

As Alec Baldwin didn’t say, A. B. L. Always be learning. I’ve spent much of the past couple of weeks working on a law-review article. In the course of that work, I’ve learned something new about four different topics: The sorites paradox. It’s invaluable for putting vagueness in context. For more, go to Wikipedia and the Stanford Encyclopedia of Philosophy. … Read More