I received the following inquiry from a reader: As you know, goods or services can be purchased by means of purchase orders issued under a master contract or by POs that aren’t issued under a master contract—I’ll refer to the latter as “stand-alone” POs. They can be issued for one-off purchases or on a regular basis as part of an … Read More
After chewing over the comments to this post on excluding consequential damages, I’m left with the following thoughts: I remain of the view that putting a cap on damages is the simplest and least contentious way to limit damages. And it can make excluding certain kinds of damages less relevant, or even entirely irrelevant. Whether a cap makes sense would … Read More
It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to the courthouse. More prosaically, avoiding … Read More
Without any editorializing by me, here’s an extract from this article by Sathnam Sanghera in the Times Online: On the one hand, written agreements protect parties if things go wrong and provide a useful framework for engagement. But, on the other, drafting contracts slows business down—something Stephen Covey emphasises in The Speed of Trust: The One Thing that Changes Everything, … Read More
[Updated 12:05 p.m. EST Feb. 24, 2010] Three variations on a closing theme: Does “Closing” Refer to a Process or a Moment in Time? Does closing mean the moment a transaction is consummated? Or does it refer to the process leading up to that moment, with contracts being finalized and signed, opinions being issued, and funds being sent whizzing through … Read More
In this January 2008 blog post I noted that the requirements for what constitutes a “contract under seal” have been relaxed to the point of ludicrousness. But I also noted that in some states whether a contract is under seal has a bearing on which statute of limitations applies. From @Richards1000‘s prolific Twitter outpouring I learned today of this post … Read More
Thanks to the Legal Writing Prof Blog, I learned of an article entitled “The Ethics of Contract Drafting.” It’s by Gregory M. Duhl, associate professor at William Mitchell College of Law. It will be appearing in the Lewis & Clark Law Review, but for those who can’t wait, it’s available on SSRN by clicking here. Here’s the abstract: This Article provides … Read More
One of the chapters of MSCD that I sweated most over was chapter 10, “Ambiguity of the Part Versus the Whole.” Here’s the first paragraph: Use of plural nouns and the words and, or, every, each, and any can result in ambiguity. In each case, the question is whether it is a single member of a group of two or … Read More
[For a follow-up to this post, see this March 2, 2010 blog post.] I have in front of me a contract—it’s for the sale of goods—that contains the following provision excluding certain kinds of damages: Neither party will be responsible or held liable for any consequential, special, or incidental losses or damages. You can rely on sellers asking for this … Read More
When it occurs in contracts (apart from its use in the phrase specific performance), more often than not the word specific serves no purpose. Consider the following examples, which I harvested at random from the SEC’s EDGAR system: Within 60 days following such request for a review, the Plan Administrator will, after providing a full and fair review, render his final … Read More
