Revisiting the English Case on “Best Endeavours” and “Reasonable Endeavours”

I subscribe to the RSS feed of Mondaq.com, a repository of law-firm white papers, newsletters, whatever you want to call them. Occasionally something will show up that falls within my bailiwick, and last Friday I spotted a white paper issued by the English law firm Lawrence Graham LLP entitled “Drafting Contracts: How Useful Is the Boilerplate?” I set it aside … Read More

Rethinking “Material” and “Material Adverse Change”

I should have had enough of material and material adverse change, given that I discuss materiality in chapter 7 of MSCD, in this law review article, and in this article in the M&A Lawyer. But the topic continued to nag at me, and recently the fog cleared—I realized that my analysis was significantly flawed, and I also figured out how … Read More

“Shall”—This Time It’s Personal

Recently someone from the plain-English camp chided me for disagreeing with “the more progressive view” that one should avoid shall in contract drafting. Such potshots are, I suppose, inevitable if you publish enough, and they’re best ignored. But what good is a blog if one can’t occasionally use it to set matters straight? So here goes: My critic says, in … Read More

“Certify”

The issues of word choice that I discuss in MSCD are ones that drafters are likely to encounter repeatedly. In your day-to-day drafting, you’ll probably come across many other, quirkier issues. Here’s one I encountered today. I’m currently revising a software license agreement. It includes, in the section dealing with what’s meant to happen when the license terminates, the following … Read More