In this post yesterday I offered a limited critique of Chief Justice Strine’s dissent in Williams Companies, Inc. v. Energy Transfer Equity, L.P. But one benefit of having a traditionalist contract-drafting notion rear its head periodically is that it forces me to keep refining my arguments. So in this post I explain in greater detail why it makes no sense to suggest that … Read More
In this post I indicate that I wasn’t convinced by a treatise saying that it “sounds as if” reasonable best efforts imposes more of an obligation than does commercially reasonable efforts. Here’s some background on that. I have a halfway decent ear for English usage, perhaps as a result of having grown up in a bookish family. It’s an important weapon in … Read More
I’ve long wrestled to articulate what I sensed was a distinction between two vague words, promptly and substantial. Here’s my latest attempt: Different vague words might pose different challenges. For example, in a given context the time constraints might be clear-cut enough so that there’s little room for dispute over what’s required for a party to act promptly. By contrast, … Read More
Well, here’s something I didn’t expect: that I would wade in again on efforts, and in a back-to-basics way. On 23 March, the Delaware Supreme Court issued its opinion in Williams Companies, Inc. v. Energy Transfer Equity, L.P. (here). I won’t mention the broader details of the opinion. Instead, I’ll limit myself to what it and some related discussion have to say … Read More
Behold the following: The Sponsor hereby represents and warrants to BNY Mellon, which representations and warranties shall be deemed to be continuing, that: … I’ve seen this provision in different kinds of contracts, notably lending agreements. But I haven’t found any commentary about it. And I don’t believe it’s mainstream in M&A. Here’s how a related concept is usually expressed in M&A … Read More
Regular readers will know that it has long been a hobby of mine to collect weird ways that drafters find to say may. But at some point, your cross the line and it’s no longer fun and games. Instead, you confront the horror. Friends, we’ve reached that point. Behold the following: The Grantee is hereby empowered to do any and … Read More
Go here for episode 54 of The Civil Engineering Podcast, my 20-minute conversation with Christian Knutson on “How to Master the Language for Clearer Engineering Contracts.”
Perhaps some authors buff and polish their reference-work manuscript to a state of gleaming perfection, then place it on a velvet pillow and deliver it to the publisher. Well, that’s not quite how it works with A Manual of Style for Contract Drafting. New Stuff When I started studying the building blocks of contract prose, it was largely uncharted territory. … Read More
Attachment-enumeration nerds—wait, does such a creature exist?—this is for you. It’s the result of my revisiting this subject after being prodded by a reader. If you have any quibbles, I’d be delighted to hear them. *** Enumerating attachments serves two functions. First, the number or letter used in referring to a particular attachment tells readers where they can expect to … Read More
It’s likely that to some degree your templates are constructed of traditional contract language, with all the confusion, wordiness, archaisms, and redundancy that entails. You want to improve your templates so they’re clearer, more concise, and better address your needs. Well, here’s how that might not happen. You assign one of your in-house lawyers to do the work. Pothole 1: … Read More
