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
One of my favorite categories-of-contract-language topics is what I call “throat clearing.” That’s when you have an extraneous verb structure bolted to the front end of a sentence. I haven’t discussed throat-clearing much on this blog, so here’s the first section of MSCD‘s treatment of the subject: I mention this because of an exchange I had today with Matt Boyd … Read More
Like the heading says, you can find here links to my 2019 U.S. public “Drafting Clearer Contracts” seminars in partnership with Thomson Reuters’ Legal Executive Institute. I hope to see some of you at one of the seminars. Give me the secret blog handshake …
In twenty years of exploring efforts variations, somehow I never got around to considering very best efforts. *whacks self upside the head* Here are some examples from EDGAR: WHEREAS, the Company desires to provide the Executive with a bonus upon the occurrence of certain events in order to induce his continued service with the Company and to encourage him to … Read More
My daughter invited me to go a comedy club. Killjoy that I am, I had never been to a comedy club before. But my hermit tendencies aren’t what this blog post about. Instead, before the show, my daughter emailed me the following fine print from the ticket: You must present the original credit card used to make this purchase at … Read More
Today’s mystery contracts word is subsisting. I searched on EDGAR for subsist in its various forms. Although it’s used sporadically in other contexts, the 40 or so examples I looked at overwhelmingly fall into two categories. One category is statements of fact to the effect that leases for real or personal property are subsisting. Here are some examples: … the property held … Read More
I noticed that the recent opinion of the Delaware Chancery Court in Fetch InteractiveTelevision LLC v. Touchstream Technologies Inc. (here) featured the following snippet from the contract at issue: “[FetchIT] shall cure such default within fifteen (30) days or immediately if deemed to be incurable.” Yes, the number expressed using a word doesn’t match the number in parentheses. I’ve written … Read More
