Via Dave Hoffman (aka @HoffProf) I learned of this post by Matthew Stiegler (aka @CA3blog). It involves and and or, so you know it’s headache-inducing. I won’t attempt to set the scene. Instead, let’s cut to the chase. Matthew’s post involves the Third Circuit’s recent decision in Sköld v. Galderma Labs. Here’s the court quoting the contract provision at issue: The … Read More
Last April I told you in this post that I had become an advisor to LegalSifter, the company that’s developing software to help you review the other side’s draft contracts. What do I have to announce now? Well, nothing in particular. I’m simply continuing to do my part. In addition to doing consulting work, and roaming around giving seminars, and hacking away at … Read More
Go here for my podcast with Sarah Carlin, Director of Recruiting at Hire Counsel, a national leader in legal staffing. Like the blurb says: Ken and Sarah discuss how Hire Counsel helps companies with their contracts process, and what the work of a contract manager consists of on a daily basis. They discuss the backgrounds that make for a successful … Read More
Generally it’s a bad sign when one talks about dreams, but bear with me. This morning I woke with a start. In my sleep I had been running through verbs in my mind. When it was the turn of abstain, what’s when my eyes popped open. Of course! Why hadn’t I thought of abstain before! I reached for my laptop. … Read More
A few days ago I announced that in May I would be doing “Drafting Clearer Contracts” seminars in Geneva, Switzerland. Well, I’ve just cancelled them. One reason was that I hadn’t given people enough notice. But there’s a bigger issue. Over the last few years, my Geneva seminars have been the only seminars I do without a partner to provide … Read More
I’m still in the weeds on efforts, so please indulge me. Consider the following (emphasis added): In UBH (Mechanical Services) Ltd v. Standard Life Assurance Co. T.L.R., 13 Nov. 1986 (Q.B.)., the court said that “the phrase ‘all reasonable endeavours’ is probably a middle position somewhere between the other two, implying something more than reasonable endeavours but less than best … Read More
A tipster told me about this article in the Economist. It concerns arbitration of a dispute over credit-default-swaps documentation. I’m not clear on the details, but here’s the gist of it: A contract used the defined term “Obligations” to mean an entity’s bonds. But in one crucial provision, the contract used the word “obligations,” without the initial capital. The arbitration … Read More
CONTRACT-DRAFTING NOIR (Episode 338) Man sitting in a nondescript motel room at night. Bright lamp illuminates him but leaves his face in shadow, as does his fedora. His voice is as world-weary as his slouch. It’s real simple, see: Use the passive voice, drop the actor, bad stuff happens. Today’s cautionary tale comes from another tipster in the contracts deep … Read More
OK, kids, this is my most novel categories-of-contract-language post in a while. Let’s start with hereby. Here’s what MSCD ¶ 3.35 says: One helpful element of language of performance is hereby, which signals that the act described is being accomplished by the speech act itself. You could omit hereby, as in [1-1a], but this use of hereby is consistent with … Read More
You might recall this post from last October, when I managed to come up with a contract extract showing how using the dreaded defined term this Agreement might help avoid confusion, assuming you’re really, really incompetent. Well, thanks to an informant buried in the contracts deep state, I now bring you something comparable, the image at the top of this … Read More
