Last month I ran the following idea by my Twitter followers: Pondering a blog post: "Ten Signs Your Contract Template Is F*cked." — Ken Adams (@AdamsDrafting) October 10, 2020 It met with sufficient approval that I prepared a blog post entitled “Your Shit’s Fucked Up: 7 Signs of Dysfunctional Contract Templates.” Well, I regret to say that it won’t see … Read More
Last week I tweeted this, or something close to it: “When I want authoritative contract-drafting advice, I look to litigators.” I was aware that it was unclear whether I was being sincere or snarky. After a few hours, I decided that being gratuitously confusing was unhelpful, so I deleted the tweet. But the replies to my tweet remain. Some endorse … Read More
What I call “ambiguity of the part versus the whole”—ambiguity involving whether it’s a single member of a group of two or more that’s being referred to, or the entire group—is annoyingly complicated. Whenever I talk about it, I have to remind myself, and those I’m addressing, that we have no choice but to wrestle with this complexity because people … Read More
I’ve written previously about “elegant variation.” Here’s what I said in this 2015 post: Elegant variation—going out of your way to avoid using the same word or phrase twice—is never a good idea. It’s particularly unfortunate in contract drafting, in which tone plays no part. If you wish to convey the same meaning, use the same word. If you think … Read More
Five new series of my online course Drafting Clearer Contracts: Masterclass start in January 2021. (Go here for the course home page.) The first session of each of the series begins on these dates and at these times: Series (7) (Asia & Middle East Only), Tuesday, 12 January 2021, 19.00 GMT+8 Hong Kong Series (8) (UK & Ireland Only), Wednesday, … Read More
I received this from a reader: Where can a solo find freelance lawyers who have really good contract editing and negotiation skillsets? I have had a really hard time finding such people, including through temp agencies. My biggest challenge is finding people who not only know how to draft agreements, but are also efficiency-minded. Is there a market for such … Read More
In my role as LegalSifter‘s chief content officer, I’ve been looking into provisions relating to information security. In the process, I’ve encountered some new jargon. (I use the word jargon as shorthand for unhelpful terms of art.) One example has stood out—the phrase principle of least privilege, sometimes truncated to just least privilege. Here’s an example: There’s a good chance … Read More
Of the recommendations in MSCD, none strikes terror in the hearts of traditionalists more than using states instead of represents and warrants, and statements of fact instead of representations and warranties. (Well, it’s probably a tie between that and—brace yourselves—dispensing with the defined term this Agreement. Gasp.) But my recommendation that you use states comes with a health warning: Whether … Read More
The concept of termination for cause occurs in employment agreements. That’s where it belongs—don’t put it in other kinds of contracts. Here’s an example of a definition of “Cause” from an employment agreement: And here, from a manufacturing services agreement, is a section referring to termination for cause: In employment agreements, the concept of termination for cause takes the … Read More
Here’s something I tweeted this week: Tonight's question: What acronym have you seen used in a contract as the defined term for that contract? Off the top of my head, I recall having seen NDA, MSA, and CRADA. (I'm not endorsing this practice!) — Ken Adams (@AdamsDrafting) September 22, 2020 Here are the examples people submitted in response, plus others … Read More
