I came across this article in the Contracting Excellence Journal, published by the International Association for Contract & Commercial Management (IACCM). It’s by Rob Waller, Helena Haapio, and Stefania Passera, and the title is Contracting Simplification: The Why and the How. I could hardly argue with the premise for the article. Traditional contract drafting doesn’t work? Check. Confusing contracts can lead … Read More
In this comment to a recent post, a reader outlined steps they’ve taken to make their contracts simpler and clearer. For purposes of this post, what’s of interest is that those steps include the following: … use “will” for our obligations and “shall” for the other party, … This is only the second time I’ve encountered the notion of using different verb … Read More
I’ve found that those in charge of contract templates at companies are experts at finding obstacles to changing their templates. I’ve heard all sorts of reasons why change is hard: “We don’t have time.” “The customers won’t like it.” “We’re all so used to the current templates.” “You don’t understand the business constraints.” And so on. Even when they opt … Read More
In a stream of posts over the past couple of months, I’ve been nagging companies about their contracts. It boils down to something like this: It’s likely your contracts are a mess. That matters. Do you have the time and expertise to fix the problem? What are you going to do? The response has pretty much been silence. I’ve been … Read More
Who is best placed to make decisions about a company’s contracts? I don’t know; I guess it depends. How about the general counsel? After all, they should have the broadest perspective, and they should be able to think long-term: How much longer does each deal take because our contracts are wordy and confusing? What’s the risk of our exposing ourselves … Read More
Yesterday someone suggested to me that the main problem with contracts is that they’re too complicated. That’s consistent with the message of an article that appeared in Legaltech News this week, entitled Are Law Firms Too Sophisticated for Their Own Good? (here). It’s also consistent with a recommendation I’ve heard over the years: lawyers should take pity on those who … Read More
Recently I received the following from longtime reader Jeff Wheeler: Here’s a little timewaster of an article that nonetheless got me pondering a drafting question: http://lifehacker.com/lets-end-the-gif-jif-pronunciation-debate-right-now-1796419121. After pondering the relevance of weightier debates to this one, the author seems to conclude there’s no objectively correct answer or superior argument to be made for one pronunciation versus the other, and advises that … Read More
I bring you glad tidings of a new post by Glenn West on Weil’s Global Private Equity Watch blog. It’s entitled On Naval Ramming Bows and Contractual Boilerplate—Are Standard “No Third-Party Beneficiary” Clauses Always a Good Thing? To whet your appetite, I present you the key bits: Glenn reminds us of the limited utility of no-third-party-beneficiary provisions: While most contracts contain … Read More
[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).] Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, … Read More
In this post I mention that I troubleshoot company templates. I’ll now explain why that service that has value. Contract-drafting is long and life is short, particularly if decisions regarding contract drafting are left to the individuals in an organization. You’re a fan of clear and modern contract language? That’s great, but you have some obstacles to overcome before you … Read More
