The doublet costs and expenses occurs routinely in contracts. Here’s an example selected at random from the SEC’s EDGAR database: If action is instituted to collect this Note, the Company shall pay all costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred in connection with such action. Black’s Law Dictionary gives the following definitions for cost and … Read More
The word competitive is routinely misused in contracts. That comes as no surprise, given that it’s routinely misused in legal and business writing generally. Competitive means (1) of, involving, or based on competition and (2) likely to succeed in competition. In the following contract provision, competitive is used to express the first meaning: Executive acknowledges the highly competitive nature of … Read More
Given that I’ve been blogging for a year, I thought I’d take the opportunity to pull together in this post, in the form of “dos” and “don’ts,” some components of my online presence. The coverage is necessarily patchy, but it’s safe to say that in the past year I’ve been able to write about the issues that I feel most … Read More
I recommend that you give serious thought to never using it being understood. In the vast majority of instances, it being understood is equivalent to it is agreed. (Indeed, often enough the phrase used is it being understood and agreed.) When used in this sense, it being understood adds nothing, seeing as the contract lead-in states that the parties are … Read More
I recently reviewed for a company a draft settlement agreement that had been prepared by outside counsel retained by the company. I thought the draft needed help. In particular, I found the recitals bloated and vague: RECITALS A. As of the date of this Settlement Agreement a dispute exists between AcmeTek and Widgetz regarding the contracts made between them. AcmeTek … Read More
Regarding use of the word parties as a defined term, MSCD 2.42 says the following: [D]o not use the defined term the Parties. It ostensibly spares the drafter from having to refer throughout a contract to the parties to this agreement, but one can simply refer to the parties, because such a reference could not conceivably be construed to mean … Read More
At the ABA Section of Business Law annual meeting, which this year is being held in San Francisco, I’ll be on the panel for a program entitled “How to Write Better Business Documents.” It’s being sponsored by Business Law Today and will be held on Friday, August 10th, from 2:30PM to 4:30PM. I’ll be speaking about—guess what?—contracts. It should be … Read More
In litigation between author Clive Cussler and Crusader Entertainment over production of the movie (and box-office flop) “Sahara,” a jury recently ordered Cussler to pay Crusader $5 million in damages. News accounts (including this one) noted that the jury foreman had said that the contract between the two sides played a big part in the deliberations. The foreman found the … Read More
I posted my first blog item a year ago yesterday, so I thought that a bit of navel contemplation was in order. In this item on the theme of “Niche Thyself,” Kevin O’Keefe of Real Lawyers Have Blogs recently quoted with approval the notion that an entrepreneur aims to create something that is of high value to customers and is … Read More
Don’t worry—I’m not going to get on my representations and warranties hobby-horse again. Instead, I just want to point out some terms that are inappropriately used in relation to representations. As I say in MSCD 3.113, one breaches an obligation, but not a representation. Instead, a representation, like any statement of fact, is either accurate or inaccurate. If I tell … Read More
