Longtime readers of this blog will be aware of my hostility towards the phrase represents and warrants (and representations and warranties). Over the weekend I was reminded that I don’t include in the MSCD discussion (starting at 12.285) a point I make in my seminars. Here it is: The only purpose that Acme represents and warrants serves is to indicate … Read More
Every so often someone says to me, in connection with MSCD, “I don’t always agree with you.” My ears prick up when I hear that. It suggests to me three possibilities: The speaker has spotted flaws in my analysis. The speaker misguidedly regards contract drafting as a craft, with the drafter being free to select at will from an array … Read More
If you’ve perused chapter 2 of MSCD (Categories of Contract Language), you’re aware that I have a mania for disciplined use of verbs in contracts. But I haven’t previously had occasion to discuss use of can and cannot; I’ll do so now. The word can is used to express physical or mental ability, as in he can open beer bottles … Read More
One topic we discuss at my “Language and Layout” seminars is when it’s appropriate to have signatories date their signatures, as opposed to relying on the date stated in the introductory clause. (This is discussed in MSCD at 1.16–21 and 4.3–7.) In a couple of recent seminars I was asked what one does if, in a contract that provides for dated … Read More
Recently the public radio stations I listen to concluded their fall fund drives. I thought I’d attempt something analogous and repeat a previous request: The ABA is in the process of collecting testimonials (otherwise known as “blurbs”) for the second edition of A Manual of Style for Contract Drafting. If you find MSCD valuable and would like to help spread … Read More
Contract drafting is facilitated if you find the simplest way to articulate a given meaning and then stick with it. That applies to the small stuff, too. Take, for example, together with. Often you’re better off trading two longer words for one shorter one—and: “Hotel” means the Site together with [read and] the Buildings. At other times, with does the … Read More
Who knows what ambiguity lurks in the heart of contracts? Well, reader Steven Sholk has an inkling, because he’s the one who told me about Graev v. Graev, 2008 N.Y. LEXIS 3252 (N.Y. Oct. 21, 2008), a case that involves the meaning of the word cohabitation. As part of their divorce settlement agreement, Mr. Graev agreed to pay Mrs. Graev … Read More
Over the course of the past few years I’ve been working sporadically on a shortish (16,000 words) manuscript entitled “The Structure of M&A Contracts.” It discusses the function of the different categories of provisions in an M&A contract (representations, pre-closing obligations, conditions, indemnification, and termination provisions), the interplay between those categories of provisions, and the structural issues that routinely arise … Read More
In my writings and during my speaking engagements, I talk up the benefits of overhauling your contract process, templates and all. In the past few weeks, I’ve been wondering if given the current travails—whether you call it a recession or something else—I should adjust my recommendations. Anyone looking to start something new has likely been doing some soul searching. For … Read More
Last June, Hexion Specialty Chemicals announced that it was walking from its $10.6 billion acquisition of Huntsman Corp. on the grounds that the capital structure for the combined entity was no longer viable and would render it insolvent. Hexion filed suit in Delaware, and on September 29, 2008, Vice Chancellor Lamb issued his opinion. One of Hexion’s claims was that … Read More
