I’ve recently been thinking about the concept of “survival.” It crops up in contracts in three ways, and in each of those contexts it’s either unnecessary or inferior to an alternative approach. I discuss each of these three contexts below. Survival of Claims Sometimes an agreement will specify that any claims that arise before an agreement terminates will survive termination. … Read More
Recently someone asked me about settlement and release agreements, and that put me in mind of a picturesque drafting usage that’s a fixture of release language—from the beginning of time, as in “Jones hereby releases Acme from any claims … arising from the beginning of time to the date of this agreement.” I searched for this phrase in the material … Read More
The box office is now open for the “Intensive Contract Drafting Workshop” that I’ll be conducting in Toronto on November 6–7, 2006, under the auspices of the Professional Development Program of York University’s Osgoode Hall Law School. For more information, go here. In particular, check out the brochure, a pdf of which is at the bottom of that page.
The Nov.–Dec. 2005 issue of Business Law Today contains my article A Lesson in Drafting Contracts: What’s Up with “Representations and Warranties?” Because in this article I give a categorical thumbs-down to a usage present in the overwhelming majority of corporate agreements, I was prepared for some pushback. So when Business Law Today published in its Jan.–Feb. 2006 issue Tina … Read More
I’ve just posted on the “Ken Adams’s Articles” page a copy of my article Understanding “Material Adverse Change” Provisions, which is in the June 2006 issue of The M&A Lawyer. As I explain in the article, it’s a more concise and practitioner-friendly version of the analysis of MAC provisions contained in MSCD and my law review article on the subject.
This weekend, I decided to explore the implications of the Buyer knowing, pre-closing, that a Seller representation is inaccurate. (I haven’t seen the various aspects of this topic treated together in any detail from the perspective of the drafter.) Here’s what I put together; you should consider it a first draft. I’d be happy to receive comments. Disclosing Pre-closing Knowledge … Read More
It’s commonplace for drafters to assume that unless they say so explicitly, schedules and exhibits attached to a contract don’t constitute part of that contract. Here’s an assortment of contract language reflecting this assumption: Schedule A constitutes a part of this agreement. All exhibits referenced in this agreement are made a part of this agreement. The exhibits and schedules hereto … Read More
With your indulgence, I’d like to talk grammar. At the heart of A Manual of Style for Contract Drafting is what’s discussed in chapter 3—the different categories of contract language and the verb use that’s appropriate to each. One such category is “language of performance,” which serves to memorialize actions of the parties that are contemporaneous with the signing of … Read More
I’ve spent a fair amount of time recently working on commercial agreements, and I’ve noticed that some companies require that their registered trademarks be stated in all capital letters, with the registration symbol “®” appended, whenever the trademarks are referred to in a contract. When reading a contract that refers repeatedly to, say, “FLEXORBALIN®” (I made that up), I find … Read More
In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is “settled”). This argument has long … Read More
