Another Depressing English Case on “Warranties”

Via Mark Anderson, I learned of the opinion of the High Court of Justice, Chancery Division, in Sycamore Bidco Ltd v. Breslin. I paid it just enough attention to see that it exemplifies an unhealthy English approach to contract drafting and contract interpretation. The contract at issue contained the following language: 5. Seller Warranties 5.1 The Sellers severally warrant to the Buyer … Read More

Dear U.S. Contract Drafters: The World Be Hating on You

Yesterday I spotted the following tweet that @mcfandrew86, research development officer at Queensland University of Technology, Australia, apparently posted while at a contracts workshop: Basic rule of contract drafting? Don't use a USA contract as an example! Oh, and don't copy and paste in haste! #arms2012 — McFandrew (@mcfandrew86) September 19, 2012 Then there was this last week from @IPDraughts, … Read More

The Different Kinds of Problematic Terms of Art Used in Contracts

[This post replaces this previous post, which I deleted, except for the comments. Very occasionally I write something, post it, and then promptly realize that the topic in question is more complex than I had bargained for. That happened with my previous post. I revised it once, but realized that wouldn’t do the trick, and revising it again seemed a … Read More

Revisiting “Indemnify”

[Adjusted 4:30 p.m. EDT, July 28, 2012, to implement the recommendations made by A. Wright Burke in his comment; revised 7:00 a.m. EDT, July 31, 2012, to overhaul the section on indemnify and hold harmless; revised August 13, 2012, to add paragraph “Recover for External Events or Circumstances”.] Over the past four years I’ve considered indemnification in half a dozen … Read More

Revisiting “Represents and Warrants”: Bryan Garner’s View

I’ve written lots about represents and warrants (and representations and warranties), culminating in a series of posts a couple of years ago. See, in reverse chronological order, this post, this post, this post, and this post. With the last of those posts, I felt as if for the time being I’d said pretty much all I could say. And I felt … Read More

Entire-Agreement Provisions, Precluding Fraud Claims, and Magic Words: A Recent Texas Case

[Updated 20 Nov. 2023: For a discussion of using no-reliance language in commercial contracts, see this 2016 blog post.] [Updated 23 May 2011: Revised again to clarify the analysis. Sometimes it takes a while to get stuff right!] In Italian Cowboy Partners, Ltd. v. Prudential Ins. Co., WL 1445950 (Tex. April 15, 2011) (PDF copy here), the Texas Supreme Court … Read More

Does Indemnification Cover Only Losses from Nonparty Claims?

Is there no end to the confusion prompted by the verb indemnify? Recently in this post and this post I considered how a claim for indemnification relates to a claim for contract damages. In the first of those posts, reader Gord offered the following comment: Canadian lawyers when using indemnification language in contracts have had to consider and contend with an Alberta case … Read More

Indemnification: A Misunderstood Concept

[Updated 3:00 p.m. EST, January 10, 2011: In this post, I propose revised indemnification language. I’ll chew over whether still to offer as an option in Koncision’s confidentiality agreement the alternative language I offer below.] [Updated 9:50 a.m. EST January 7, 2011: The question of how the elements of a claim for indemnification relate to the elements of a claim … Read More

Excluding Consequential Damages Is a Bad Idea

[For a follow-up to this post, see this March 2, 2010 blog post.] I have in front of me a contract—it’s for the sale of goods—that contains the following provision excluding certain kinds of damages: Neither party will be responsible or held liable for any consequential, special, or incidental losses or damages. You can rely on sellers asking for this … Read More

New Article on Extra-Contractual Liability

The August 2009 issue of The Business Lawyer contains a great article by Glenn D. West and W. Benton Lewis, Jr. of Weil Gotshal entitled “Contracting to Avoid Extra-Contractual Liability—Can Your Contractual Deal Ever Really Be the ‘Entire’ Deal?.” Click here for a copy. Glenn is getting into the habit of writing articles that are essential reading for anyone looking … Read More