For a couple of years now, the phrase at its [or his or her] discretion has been at the back of my mind, and I’ve finally gotten around to giving it some thought. This post addresses use of at its discretion in language of discretion, as in Acme may at its discretion terminate this agreement. (I’ll deal with the other … 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
In this 2019 post I suggest that not much is to be gained by arguing which is better, English drafting or US drafting. But I did point out one noteworthy distinction: Even if you accept that a given kind of U.S. contract is likely to exhibit more dysfunction than an equivalent piece of English drafting, that’s perhaps offset by the … Read More
[Updated 1 January 2018: Revised to reflect that the photo included in Bryan Garner’s tweet features not exceptions (as I originally stated) but conditional clauses.] I noticed an exchange between D.C. Toedt and Bryan Garner. Because it allows me to address a moderately interesting issue, namely where in a sentence you should put a conditional clause, I permit myself to wade … Read More
Here’s another entry in the rhetorical-emphasis hall of shame—in all respects. Here’s an example: This agreement is in all respects governed by Minnesota law. By omitting in all respects you lose nothing except surplus words. The same goes for in all material respects—use instead materially, but remember that it’s ambiguous. (For more on that, see chapter 8 of the second … Read More
