Today I saw this tweet [Updated 2 Jan. 2022: The tweet that prompted Casey’s response was later deleted. It asked which was better, indemnification or indemnity]: The authority is @AdamsDrafting, as alwayshttps://t.co/g1ILOT4fht — D. Casey Flaherty (@DCaseyF) November 4, 2021 I was pleased to receive that endorsement from Casey—he has been the most astute observer of my stuff. (See his … Read More
Some AI-and-contracts companies say their artificial intelligence will learn the patterns in your stash of signed contacts and use that, together with a menu of your preferences, to create, in an instant, a markup of the other side’s draft. This post is on LegalSifter’s blog. To continue reading, go here.
Here’s one of today’s tweets: Today's pioneering plain-English initiative: god's acts>acts of god — Ken Adams (@AdamsDrafting) October 29, 2021 It wasn’t entirely inane. A symptom of legalistic jargon is if, in the case of a usage with two or more components, those components are fixed in a certain order. So the phrase is always acts of God, with the … Read More
I thought it high time that I collect in one place my writings (and a couple of videos) on boilerplate. (By “boilerplate,” I mean the stuff relating to administration and dispute resolution that you see toward the back of most contracts.) The main headings are in alphabetical order; the items under each heading are in reverse chronological order. Boilerplate is … Read More
Counterparts provisions are a mess. For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that. And whatever counterparts are, the issue … Read More
This is what my definition sections look like: But you could instead opt to present the definition section using a table format: Using a table format is, as far as I can tell, particularly popular in England and other Commonwealth jurisdictions. The two primary characteristics of using a table format are (1) a break between the defined term and the … Read More
In my 2019 article, I explain that in the phrase best efforts, the word best has been “delexicalized”—instead of expressing its dictionary definition of “exceeding all others,” in this context it’s used as a rhetorical flourish. Other phrases that feature the delexicalized best are in the best interest(s) of Acme and to the best of Acme’s knowledge (and variants). I’ve suspected … Read More
Warning: this post is for hard-core efforts fans only. As part of my frenzy of rooting around on EDGAR yesterday looking for efforts anomalies, I saw this: The phrase best efforts possible is an oddity. It and the variant best possible efforts occur only a handful of times on EDGAR, mostly in contracts drafted in countries where English isn’t the … Read More
Let’s start with what we know: The notion of a hierarchy of efforts standards is nonsense. It’s inconsistent with English usage, semantics, and how contracts work. For more, see my 2019 law review article. (According to the Delaware Chancery Court, it’s “The most thorough analytical treatment of efforts clauses.”) But some drafters are so taken by the notion of a … Read More
Yesterday I saw this cry for help on Twitter from @thepixellawyer: @AdamsDrafting ever seen this? It's new to me. #strange pic.twitter.com/40Fw2LcND9 — Chris Brown (@thepixellawyer) September 28, 2021 So I went on EDGAR. Westlaw offered me 1,196 contracts containing the phrase, so it’s a thing. On the other hand, it’s not commonplace—I’ve been hanging out in this neighborhood for 20 … Read More
