I’m grateful to stalwart readers Steven Sholk and Mike Wokasch for contacting me about the Bear Stearns merger agreement. (Click here to go to a PDF copy.) This deal raises all sorts of policy issues, but we at AdamsDrafting say to heck with the big picture—let’s look at the drafting angle! I offer below some random impressions derived from ten … Read More
I’m working on the introduction to MSCD2, and five minutes ago I wrote this: English is used in contracts around the world, and not only in contracts between companies from English-speaking countries. English has become the lingua franca of international business, so a contract between, say, a French company and a Brazilian company is more likely to be in English … Read More
I can think of five issues relating to how you state amounts of money in a contract. Words and Numerals Drafters will often do the words-and-numerals thing when stating amounts of money: Acme shall pay Widgetco One Million Dollars ($1,000,000). The idea is that whereas numerals are easier to read than words, they’re more prone to typographic errors; adding words … Read More
Most of what I do addresses how to express clearly and efficiently whatever you want to express in a contract. But that only goes so far, because no amount of clarity will help you if you simply mishandle an important substantive issue. This story in the ABA provides a reminder of that. A Texas law firm retained an Arizona law … Read More
I’ve written at inordinate length about how MAC provisions are used in contracts and how MAC is defined. But I don’t much get into whether, and how, MAC provisions are actually invoked in deals, unless issues of contract language come into play. For a useful discussion of such policy issues, see this DealBook story by Steven Davidoff.
[Updated 9 March 2021: This post has been superseded by my article Know Your Enemy: Sources of Uncertain Meaning in Contracts, Michigan Bar Journal (Oct. 2016) (here).] [I was prompted to write this post after consulting, over the past few months, dozens of cases ostensibly involving ambiguity but in fact dealing with a range of other problems. I plan on … Read More
Reader Michael Fleming informed me of US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 U.S. Dist. LEXIS 10841 (D. Minn. Feb. 11, 2008). This case serves as a reminder that a court would likely conclude that if Smith promises to purchase widgets from you, you’ve in effect also promised to supply widgets to Smith. US Salt and … Read More
Here’s a quick way to save three words: instead of saying in accordance with the terms [or provisions] of section 6, say simply in accordance with section 6.
Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view: When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to address the immediate consequences. When … Read More
As I noted in this post, from April 21 through April 25 I’ll be giving my “Contract Drafting—Language and Layout” seminar at the Geneva, Switzerland offices of Hogan & Hartson. Well, I’ve now upgraded the registration system. For one thing, you can now pay by credit card, if you wish. To go to the registration page, click here. For information … Read More
