Form and substance? I don’t think so. In contracts, the phrase is used exclusively in references to documents to be delivered, as in an opinion of counsel in form and substance satisfactory to the Buyer. As with most “doublets,” the suspicion is that it mainly serves to add a rhetorical flourish, an easy gravitas. On closer examination, that turns out … Read More
Dennis Kennedy recently mentioned on his web site a new article on document assembly. It’s by Darryl R. Mountain, it’s called Disrupting Conventional Law Firm Business Models Using Document Assembly, and it can be found in the International Journal of Law and Information Technology. (A pdf version is available here.) It’s a thoughtful article, but I’m not the intended audience—I’m … Read More
I’m pleased to announce that between November 20 and December 4, 2006, I’ll be holding in Geneva, Switzerland, a series of seminars on contract drafting. I’m fortunate to have as my sponsors ACC Europe (the European chapter of the Association of Corporate Counsel) and Hogan & Hartson. On November 20, 22, 24, 27 and 29 and December 1, 2006, I’ll … Read More
Here’s another target in the battle against ponderous contract prose—the adjective applicable. I discuss below three different ways that it’s used in contracts. “Applicable” Plus Noun Sometimes applicable is used before a noun. It’s possible to use applicable appropriately in this manner: The Company shall provide the Employee with pension and welfare benefits and group employee benefits such as sick … Read More
I had always assumed that only consumer contracts use the first and second person, as in Each of us is free to enter into similar agreements with others and You are responsible for any personal property taxes. But recently someone sent me a major company’s form of customer agreement. In that agreement, the company—let’s call it Acme Global Corporation—was called … Read More
My background is in drafting for deals rather drafting commercial agreements. (By “commercial agreement” I mean, vaguely enough, a form agreement relating to the supply of goods, services, or technology to customers.) But in my consulting activities, I’ve recently been dealing exclusively with commercial agreements. Because any given commercial agreement will likely be entered into dozens if not hundreds of … Read More
I had such fun contemplating for the avoidance of doubt that I was inspired to move on to its very close relative, without limiting the generality of the foregoing (and the even clunkier without limitation of the generality of the foregoing). My verdict? That you should almost always be able to use a less ponderous alternative. Drafters use the phrase … Read More
How’s this for a categorical statement: Never use for the avoidance of doubt. Sometimes a drafter will use this phrase in a contract to introduce language that seeks to clarify preceding language, usually by indicating that something either falls within or is excluded from the scope of the preceding language. In this context, for the avoidance of doubt says, in … Read More
I have a particular interest in the real-world implications of indifferent drafting, so I’ve been contemplating doing an occasional series on drafting screw-ups that make the news. I was prompted to inaugurate this series by Bryan Sims, who was kind enough to point out to me this article from today’s issue of the Canadian newspaper the Globe and Mail regarding … Read More
Drafters should be aware of laws that can trump provisions of a given contract. A good example of this is the way the U.S. Bankruptcy Code can render unenforceable contract provisions that restrict assignment of rights under a contract or give a party the right to terminate if the other party files for bankruptcy. To improve my own knowledge, I … Read More
