The blog post by Peter Mahler that I mention in this post about at its sole discretion offers an example of another, unrelated drafting problem. The contract at issue required the company to exercise its option within 60 days after the later to occur of the termination date and “the final resolution of any disputes relating to such termination.” Here’s what Peter … Read More
At MSCD 3.168–.196 and in this article, I discuss why the phrase at its sole discretion and its variants are pernicious. That’s because the unfettered discretion that it seems to suggest can fall foul of the implied duty of good faith. Peter A. Mahler (@PeterMahlerEsq) of the law firm Farrell Fritz offers in this post on his New York Business Divorce blog … Read More
Last week, something I saw in a contract I was reviewing prompted me to fire off the following tweet: "Acme hereby waives the right to" = "Acme shall not": use language of prohibition, not language of performance? — Ken Adams (@AdamsDrafting) August 6, 2016 As is often the case, it has to do with the categories of contract language. The … Read More
This week I revisited my 2012 post on rethinking the “no assignment” provision (here). It reminded me that there’s a general point buried in that post. Here it is: It’s commonplace for contracts to contain something along the following lines: Neither party may assign this agreement without the consent of the other party. In Negotiating and Drafting Contract Boilerplate (Tina Stark … Read More
You know that post I did about a recent English opinion on warrants (here)? Well, Glenn West, a partner at Weil whose name appears regularly on this blog, did a blog post about it too (here). Here’s the bit that caught my attention: This author’s consistent position on this subject is to continue to bow to current market convention in … Read More
A little over a year ago I launched my Adams Contracts Consulting business. As I expected, I now spend an increasing amount of time on my consulting work. I need someone who can help me with it. The work will involve preparing contract templates for clients and, in due course, helping to build automated templates using Contract Express. It will begin slowly, on a … Read More
In everyday English, the phrase so long as means if. As in, You may go to the movies, so long as Juanita goes too. It’s used to convey that meaning in contracts too. I’m here to tell you that you should use if instead, as in the following examples that I caught in an EDGAR glue trap: During the Restricted … Read More
Consider the following: … that the Employee conceived, developed, or made, either solely or jointly with others, (1) within the scope of the Employee’s duties … See the problem? It’s not clear whether either solely or jointly with others modifies just made or instead modifies conceived, developed, or made. In other words, this extract exhibits syntactic ambiguity. I’d rather not be … Read More
I’m pleased to be returning to Australia, to give “Drafting Clearer Contracts” seminars under the auspices of Melbourne Law School. I’ll be in Sydney on 11 October and in Melbourne on 13 October. The host for both seminars is the international law firm Allens. For more information and to register, go here. As usual, my seminars in Australia will be something … Read More
You can turn any standard contract into a letter agreement by adjusting the opening and closing. (MSCD contains a chapter on letter agreements.) In what contexts might that make sense? In particular, recently I’ve had occasion to read “offer letters” between a company and an employee. They’re letter agreements. More often than not, they use you and your for the employee. … Read More
