Blog

More Misinformation on “Efforts” (And Why I Care About Standards in the Marketplace of Ideas)

20 January 2017 by Ken Adams

Yesterday I saw this article on JDSupra. It’s entitled Merger and Purchase Agreements Governed by Maryland Law: “Best Efforts”, and it’s by Scott Wilson of the law firm Miles & Stockbridge. Consider the following extract: The most commonly utilized terms are “best efforts,” “reasonable best efforts” and “commercially reasonable efforts.” Practitioners understand these terms on a sliding scale with “best efforts” … Read More

Complexity Versus Obfuscation in Contracts

19 January 2017 by Ken Adams

Today a reader suggested to me that lawyers “use complexity as a comfort blanket.” That got me to thinking about what makes contracts complicated. First, what does “complexity” mean? I suggest it can mean two things. First, that something is sufficiently technical that it requires special training to be able to understand it. And second, that something has sufficient moving parts … Read More

Which Comes First, the Definition or the Provision That Uses the Definition?

19 January 201719 January 2017 by Ken Adams

Recently I had occasion to revisit an issue I thought long settled. Because it involves reader comprehension generally, I took the liberty of buttonholing people involved in legal writing but not contract drafting. Here’s what I asked them: Below are two sentences. The second is the definition of a key defined term used in the first. Necessarily, one has to come … Read More

Tweaking Font Size and Spacing

17 January 201715 January 2017 by Ken Adams

My enumeration schemes are an important part of my repertoire. There’s the one in MSCD, then there’s the hanging-indent scheme I unleashed in this 2015 post. But despite my control-freakery, I’ve not paid a lot of attention to two aspects of my scheme, namely point size and spacing. I went with the Word default, which was then Calibri 11 point, … Read More

Putting the Defined-Term Parenthetical After “The Following”

11 January 201710 January 2017 by Ken Adams

In this 2014 post I described what seemed an oddity: putting the defined-term parenthetical at the beginning of the definition. Well, I think that with some tweaking it can be turned into a legitimate technique. Here’s how I’ve just described it in something I’m working on: If you put the defined-term parenthetical at the end of a list of items and … Read More

What to Do If Your Lawyer Uses “Witnesseth”

10 January 201710 January 2017 by Ken Adams

In this post I discuss how archaisms such as witnesseth arose more than five hundred years ago. Why do they persist? Because transactions are a precedent-driven part of a conservative profession: when it’s time to do a new transaction, it makes sense to reach for contracts used in other, previous transactions. There’s also an element of incantation involved: the law … Read More

The Roots of All-Capitals Archaisms

9 January 20179 January 2017 by Ken Adams

Tired of the moral degeneracy on prolific display in civic life in the United States? Then I invite you to take refuge in old contracts. Really old contracts. The urge to flaunt in contracts, in all capitals, the archaisms witnesseth, whereas, now therefore, and in witness whereof goes back a long way. That’s why they’re called archaisms! But I wanted … Read More

Wrapping Up Another Year on the Blog

30 December 2016 by Ken Adams

So ends another year on the blog, a year during which 967,730 people have visited the site so far. That’s a lot of visits. Here are the ten posts (from whatever year) people visited most in 2016, with the most-visited at the top: Using the Terms “Negligence” and “Gross Negligence” in a Contract “Effective Date” The Apostrophe in “Five Days’ … Read More

Short of Reading Material? Here Are Links to My 2016 Newsletters

30 December 2016 by Ken Adams

Once or twice a month I send to my 3,000 subscribers a newsletter containing not only links to recent blog posts but also musings about whatever happens to have popped into my brain. I’m under no illusions that my newsletters make for gripping reading, but what the heck: in an end-of-the-year, end-of-civilization spirit, here, in reverse chronological order, are links … Read More

“Ought”

27 December 201618 December 2016 by Ken Adams

Today I encountered use of ought in the Uniform Commercial Code, so that sent me scurrying to EDGAR, where I found 143 contracts filed in the past year that use ought. Garner’s Modern English Usage says the following about ought: Ought should be reserved for expressions of necessity, duty, or obligation; should, the slightly weaker but more usual word, especially … Read More

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