Regular readers will know that the foundation of controlled drafting is how you use verb structures. I address that in my “categories of contract language” framework. (See this post for my quick-reference chart on the subject.) One of the more crowded categories-of-contract-language topics is when the obligation is imposed on someone other than the subject of the sentence. Well, it’s … Read More
Behold the following introductory clause. See the emphasized text? It defines a term individually and collectively—a practice I mocked in the preceding post—but it uses one defined term for the individually part and a different singular defined term for the collectively part. THIS FIRST AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of March 19, 2019 (this “Amendment”), … Read More
If you ever find me on the floor in the fetus position, gibbering softly, it will be because nonsense of the following sort has finally got to me. I’ve long mocked using individually a “Party” and collectively the “Parties” when creating the unnecessary defined term Party. I had suspected that there was potential for all sorts of other mischief featuring … Read More
Getting ready for today's "Drafting Clearer Contracts" seminar in Chicago. pic.twitter.com/bDZviaKrBd — Ken Adams (@AdamsDrafting) May 2, 2019 On 2 May I did a “Drafting Clearer Contracts” seminar in Chicago, at the Standard Club, for Thomson Reuters. For the heck of it, here’s what some of the 45 people in attendance had to say in response to the question “How … Read More
As part of my LegalSifter work, I’ve been exploring carveouts to indemnification provisions and creating specs for sifters—bits of AI software—to spot them. Carveouts state that indemnification doesn’t apply to certain kinds of liabilities. The ones I’ve spotted cover liabilities arising out of the following: intentional misconduct bad faith fraud negligence breach of the contract I’m not sure why people … Read More
Updated 11 May 2019: This discussion continued across various platforms. Mark Anderson did this post; that prompted this post by Tim Cummins; I responded to Tim’s post with this LinkedIn comment; that prompted a back and forth between Sally Hughes and Mark Anderson. Mark joined me in concluding that further discussion would be a waste of time, but not before … Read More
Go here for my podcast with Casey Flaherty, director of legal project management at Baker McKenzie. As the blurb says: Ken and Casey have a freewheeling conversation about what’s involved in getting lawyers to do stuff differently. (Well, Casey does the freewheeling part, with his usual aplomb.) For some background reading, see this 2018 blog post in which Casey ruminates on the contract-drafting … Read More
Unless you’re unlucky enough to be riding the copy-and-paste train, contract drafting involves making choices. Lots of them. When I redo a company’s template, it can feel like I’m in a slow-motion version of a first-shooter video game, facing in not-so-quick succession an endless barrage of decisions. I addressed just one such decision in a recent tweet: Anyone want to … Read More
The image above is from a hotel agreement I examined as part of my LegalSifter duties. It caused me to wonder how people go about making final changes to the signature copy of a contract. What are the alternatives, apart from marking changes by hand? It’s been forever since I last did a deal, so I have no idea. Specifically, … Read More
I noticed this article published by IACCM. It’s entitled Why Are Agreements So Hard to Understand?, and it’s by Kristian Foss, a partner in a Norwegian law firm. It prompted the following thoughts: Contracts aren’t easy to understand? No surprise there. Sure, traditional contract drafting is dreadful, but the awkward fact is that transactions tend to be complicated. “Easy” is … Read More
