[Updated 1 March 2020: On 4 February 2020 the insurer filed its brief. Go here for a copy. Here’s what they said about this post: With the law and rules of grammar against them, the insureds scour the Internet in search of support for their efforts to transform a stylistic choice into an ambiguity. The insureds settle on a blogger—one … Read More
Check out this item on the blog Above the Law. It’s by Olga Mack, and it discusses my work. It won’t come as news to regular readers, but it summarizes what’s on my mind at the moment.
While poking through the wreckage of Bryan Garner’s new book on contract drafting (see my review here), I found only one idea worth considering further, namely his recommendation regarding use of the section mark (§). Here’s what he says: We’re after efficient communication and error prevention. Thirty-three percent is slower, more cumbersome, and more prone to error than 33%. And … Read More
Juro, the contract-management-software company, has produced an ebook called The Modern Contract Handbook. It consists of chapters by different authors on issues in contracts and the contracts process. I was among the contributors; you’ll be shocked to hear that my chapter is about the language of contracts. It’s based on a conversation I had with someone at Juro, so it’s … Read More
If you’ve visited this blog at all regularly over the past couple of months, you’ll have noticed not one, not two, but three blog posts that mention John F. Coyle, professor at the University of North Carolina School of Law. That’s because of two law-review articles John wrote, on governing-law provisions and jurisdiction provisions. I haven’t finished mining John’s articles … Read More
We all know that the phrase represents and warrants is pointless and confusing, to the point of being plain-old dumb. (What, you’re not aware of that? Then go read my 2015 law-review article.) In theory I’m open to rational discussion on the subject, but no one has been able to make a dent in my reasoning. But that doesn’t mean … Read More
(This is an updated version of a post I did last year.) On 4 November I’ll be doing a day-long “Drafting Clearer Contracts” seminar in London for UCL Faculty of Laws. (For more information, go here.) I can think of eight reasons why you might want to attend: English contract drafting is dysfunctional. Generally, the prose of contracts leaves a … Read More
In July my law-review article on efforts (aka endeavours) provisions was published. (PDF here.) It’s about as contrarian as the subject matter allows. I beat the tar out of the conventional wisdom that the U.S. dealmaking establishment still clutches like a moth-eaten teddy bear. And I discuss in gruesome detail the preposterous positions adopted by English courts and accepted by … Read More
Go here for my podcast with Alex Hamilton, CEO and founder of Radiant Law, the UK-based award-winning “NewLaw” firm that focuses on improving the contracting process for clients. As the blurb says: “Ken has long sought Alex’s advice on what’s wrong with contracts and how to fix it; this podcast is more of the same, but in public!”
The other day, while researching contract provisions that refer to reliance, I saw the following in a provision waiving jury trial (excuse the all caps; bold added): EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 8(C) CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO … Read More
