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
Thanks to longtime undercover blog informant Steven H. Sholk (drat, I’ve blown his cover!), I’m pleased to bring to you today a recent opinion of the Connecticut federal district court, Tyll v. Stanley Black & Decker Life Insurance Program. It’s discussed in this blog post by the law firm McDermott Will & Emery, but go here for a PDF of … Read More
My seminar trips aren’t like vacation. They’re not for sightseeing—if I’m not careful, a trip can consist of various forms of transportation, time in a hotel, time in a meeting room, various forms of transportation taking me home, and not a whole lot else. And usually I don’t linger—I’m not big on solo tourism, and my wife Joanne has a … Read More
As I noted in this 2017 post, there’s something compelling about disputes over a comma. A tip from reader Martin Clausen alerted me to another dispute featuring a comma. It’s described in this National Post article about a recent case before the Ontario Superior Court of Justice, Austin v. Bell Canada (PDF here). It involves a dispute over the rate … Read More
[Updated 26 April 2023: See also this 3 May 2021 blog post about litigation in the Delaware Court of Chancery involving a consent-to-jurisdiction provision.] Recently I devoted this post to John F. Coyle’s article on governing-law provisions. I’ve now gotten my hands on his recent article Interpreting Forum Selection Clauses (here). (I call them “jurisdiction provisions.” More on that later.) … Read More
It’s time for me to remind you all of a modest but essential element in my legaltech toolbox—the Numbering Assistant, a Word add-in by PayneGroup. Why is the Numbering Assistant important to me? Because it allows me, a Word styles doofus, to quickly and easily apply to a contract either the MSCD hanging-indent scheme or the MSCD first-line-indent scheme, each … Read More
