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
Over the course of a year I did consulting work for U.S. Bank. The person who engineered that was Betsy Clarke, VP and corporate lawyer. Here’s what I had to say about Betsy on LinkedIn: I worked closely with Betsy on consulting projects. I found her unfailing positive and unflappable. She was determined to improve her organization’s contracts, understands commercial … Read More
If a satellite is put into orbit high enough and goes fast enough, it stays in orbit: it just keeps falling around the earth. I feel that’s what my blog is now doing. It’s not something I focus on at the moment; I have more pressing things occupying my mind. But I’m always rooting around contracts and exploring new ideas, … Read More
As someone should have said, The price of freedom from ambiguity is eternal vigilance. Today’s lesson comes to you thanks to the eternally vigilant Glenn D. West, the what-to-say yin to my how-to-say-it yang. He alerted me to the recent opinion of the Delaware Court of Chancery in Batty v. UCAR International, Inc. (PDF here). Here’s the relevant bit (footnotes … Read More
While I was rooting around in hotel agreements, the following provisions caught my eye. First Example This was in a contract between a hotel and some instrumentality of Tennessee state government: The HOTEL certifies, under penalty of perjury, that to the best of its knowledge and belief the HOTEL is not on the list created pursuant to Tenn. Code Ann. … Read More
Yesterday I did this tweet, prompted by my rooting around in hotel agreements for LegalSifter: I love it that in leases, "quiet enjoyment" has nothing to do with quiet enjoyment and instead relates to possession not being disturbed by superior title. I love it even more that in hotel agreements, "quiet enjoyment" refers to guests being able to enjoy their … Read More
The concluding clause often says that the people signing the contract have been “duly authorized.” This is what MSCD says about that: The body of the contract is a more sensible place than the concluding clause for statements of fact regarding authorization. But more generally, if you’re concerned whether the individual signing for the other party is authorized, having the … Read More
Behold this random EDGAR fragment: The Participants shall procure that their representatives shall comply with all safety procedures notified to the Participants by the Operator which are implemented from time to time by the Operator whilst at the relevant location of Joint Operations. Yes, of course it’s crappy. But it’s English crappy! The “whilst” is a giveaway. But that’s not … Read More
Above is my first graph in Word, and it sure looks like it. But rather than spend any more time fiddling with it, I’m going with it as is: it’s adequate to make my simple point. It’s not the case that contract value and contract complexity both start at zero and increase proportionately. Instead, contracts want to default to a … Read More
You’re drafting a contract, as you’re in the habit of doing. You include a waiver of jury trial, for whatever reason. And you make California law the governing law. Or maybe Georgia law. Well, for purposes of trials in state court, courts in California and Georgia have held that pre-litigation waivers of jury trial are unenforceable. See Grafton Partners, L.P. … Read More
