For all my dwelling on relating to, I haven’t considered at what point something might be too remote to a given circumstance to be related to it. That, of course, is a fact-driven issue that isn’t susceptible to generalization. But it can be useful to consider examples, and Vickie Pynchon provides one in this post on her Settle It Now … Read More
In this April 2009 post I solicited submissions from any company interested in taking part in this semester’s Penn Law redrafting project. But then I had a change of heart—why not invite a not-for-profit organization to take part? So we’re going to be redrafting a trademark license agreement that The Breast Cancer Research Foundation enters into with its corporate alliance … Read More
I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM). These articles caught my eye because my public seminars and my in-house seminars at companies are attended by both lawyers and contract … Read More
The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again?
[Revised 2:00 p.m. Sept. 11 to reflect comment by randomjohn] It’s commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. My first instinct was to say that is advisable and is redundant. But responding to my call for input, reader randomjohn pointed out that in a number of provisions, … Read More
Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger agreement for Disney’s acquisition of Marvel. I’ve noted some big-picture comments in bracketed italics; I’ll spare you my many micro-level objections. RECITALS WHEREAS, the parties intend that, subject to the terms and conditions hereinafter set forth … Read More
Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses the concept in the negative. … Read More
I noticed that a third edition of Garner’s Modern American Usage has been published. I’ll be purchasing a copy, as GMAU has been the first thing I turn to when looking for guidance on general English usage. Would GMAU be of any use to contract drafters? The language of contracts is limited and stylized—it’s analogous to computer code. But once you’ve … Read More
I was pleased to receive the other day the following wry email: You’ve inspired me since your presentation to our firm back in May. I used to be content with my drafting before I met you, but I now live in constant internal turmoil. My correspondent’s state of mind comes as no surprise. To master contract language, first you have … Read More
[Update October 18, 2009: This post has been supplanted by this new post. I’ll be deleting this post in the next few days.] [Revised 12:45 p.m. EDT to mention, at the end of this post, a relevant May 2009 blog post.] In my post on the AAA standard arbitration clause, I reiterated my doubts about the relating to part of … Read More
