[Updated 13 June 2017: Prompted by this more recent post, I’ve had a change of heart. I think this should be language of declaration: The parties acknowledge that this agreement does not address the law that governs disputes arising out of this agreement or the subject matter of this agreement. Why? Because it doesn’t really make sense to state as a … Read More
I’d like now to address a concept in a way I haven’t had occasion to address it before: the circular definition. Consider the following contract definitions: “Bonus Date” means a date on which Acme determines that a Bonus Period concludes. “Bonus Period” means a period that commences on a date determined by Acme and concludes on a Bonus Date. Their … Read More
Via reader Raif Palmer, I learned that Citibank has rolled out a new form of credit card agreement, one that features, according to the cover note to Raif, “A new, clean design with simple language.” Consumer contracts are different from business contracts. Generally I don’t do consumer contracts, but I couldn’t resist having a look at the new card agreement. … Read More
Behold the following extracts from the outhouse EDGAR, each using the word joinder: … the Company shall cause each such Permitted Subsidiary to become party to the Guaranty by executing a joinder to the Guaranty reasonably satisfactory in form and substance to the Required Holders. On November 11, 2016, the Board authorized this Agreement , contingent upon its execution and … Read More
I’ve heard lawyers from two English “Magic Circle” law firms say, in different words, the same thing: We treat contract templates as a starting point. We want our young lawyers to figure out for themselves how best to adapt the template to the deal. That confuses two parts of the deal process, namely (1) coming up with deal points and (2) … Read More
So far, the only public “Drafting Clearer Contracts” seminar I have planned for Europe is the one in Heidelberg on 25 January 2017. For more information, go here. We already have a quorum, but the more the merrier! If you know of anyone who might be interested in attending, by all means send them a link.
Remember ejusdem generis? It’s the principle of interpretation that holds that if general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class. Joe Kimble’s excellent article on ejusdem generis (here) reminded me of the following assertion in Scalia and Garner’s Reading Law: The Interpretation of Legal … Read More
A reader alerted me to a recent opinion of the High Court of Justice of England and Wales in Lehman Brothers International (Europe) v. ExxonMobil Financial Services BV, [2016] EWHC 2699 (Comm) (here). At issue was the meaning of the phrase close of business, as used in a notices provision in a contract. ExxonMobil submitted a notice to Lehman’s London offices at … Read More
ACC Europe is holding its 2017 annual meeting on 7–9 May in Cascais, Portugal. And I’ll be there, as I have a 1.5-hour “Drafting Clearer Contracts” spot on the programme for 8 May. I have in mind devoting my entire time to what I call “the categories of contract language,” which relates to how you use verb structures in contracts. I’m … Read More
Table 4 in MSCD lists a bunch of suboptimal ways of saying may. In the past three years I’ve identified others; see here and here. Today, I’m proud to offer you yet another: is allowed to and its variants! Here are three examples: … and in the absence of any such indication, the Holder shall be allowed to [read may] presume … Read More
