Do yourselves a favor and strike in no way in favor of does not or will not, as in the following examples: Borrower hereby agrees that this Amendment in no way acts [read does not act] as a release or relinquishment of the Liens and rights securing payments of its Obligations. … and such holding shall in no way [read will not] affect the validity or … Read More
You’d have thought that by now I’d be inured to how problematic contract drafting is at all levels of the legal profession, but I find myself continually amazed. So how should I respond? Constant kvetching can make me look like a crank. But saying nothing seems defeatist. So I’ve decided that what I’ll do is periodically dissect deficient drafting offered … Read More
MSCD 16.29–31 deals with “rhetorical emphasis.” That’s the term I use to describe language you shovel into a contract provision to show that you really, really mean it. Every so often I encounter new examples of rhetorical emphasis. (See for example this August 2008 blog post about in all respects.) Here’s another symptom of rhetorical emphasis: fully. More often than … Read More
Today I saw the following in a contract I pulled from the SEC’s EDGAR system: SunPower hereby guarantees that, subject to Section 22, it shall supply and deliver each of the Products to the delivery point specified in a given Purchase Order (each, a Delivery Point ) on or prior to the scheduled delivery date therefor specified in such Purchase … Read More
Today I encountered shall never in a contract. I think it’s a form of rhetorical emphasis—you’re saying the same thing as shall not, but you’re also banging your shoe on the table. So I never say shall never.
While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary to what appears to be … Read More
It’s commonplace for contracts to impose on a party a duty to take a particular action even though that action has no nexus with the one or more other parties. Here’s an example: Each party shall pay all expenses that it incurs in connection with the transaction contemplated by this agreement. But if you think about, Acme doesn’t really care … Read More
Last week a reader asked me whether I knew of any cases discussing the distinction between saying “to the Seller’s knowledge” and saying “to the best of the Seller’s knowledge.” It’s commonplace for drafters to use the phrase the best of when referring to someone’s knowledge. For example, in the past month 98 contracts filed on the SEC’s EDGAR database … Read More
A reader passed on to me a “Commercial Contracts Newsflash” that he received from the international law firm Ashurst. It concerns Rhodia International Holdings Ltd. v. Huntsman International LLC, [2007] EWHC 292 (Comm), an English case decided on February 21, 2007, by the Queen’s Bench Division. (Click here for a copy of this case; as for the Newsflash, it doesn’t … Read More
A Manual of Style for Contract Drafting refers only once to the verb acknowledge. Heck, it doesn’t even merit an entry in the index. I’ll now give it the treatment it deserves. Language of Performance, Revisited I have to start by reassessing the categories of contract language. (If you just want the nitty-gritty, you might want to skip to the … Read More
