Starting at 13.364, MSCD considers the elements that go into a definition of the defined term Knowledge. One element that discussion doesn’t include is the possibility of Knowledge being defined to include information that the person in question should have known. That’s knows as “constructive knowledge,” and it features in the following definitions exhumed from the potter’s field EDGAR. “Knowledge” … Read More
You recall my recent post about the foregoing (here)? Well, suppress your gag reflex and meet its close relatives, aforesaid and aforementioned. The word aforesaid comes in two flavors. First, it occurs in the phrase as aforesaid: Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the … Read More
Last Friday I noticed this post on Above the Law. It’s by Stefan Savic, an associate at the law firm Balestriere Fariello. The title is Legalese: Won’t Do With It, Can’t Do Without It. According to Savic, traditional contract legalese is impenetrable. He says that although lawyers have been encouraged to use plain English, “the day-to-day legal universe has been slow to move … Read More
In this post I reminded you all that I’m involved with LexCheck, the contract-checking software. Part of the challenge in developing LexCheck has been determining what we tell the software to do. For one thing, I’m acutely aware that there’s a difference between your electing to consult A Manual of Style for Contract Drafting and my blog posts and my … Read More
[Updated 4 April 2018: I’m no longer an advisor to LexCheck (formerly Lit IQ), and the last time I did any work for them was in 2016.] You know the 1950s movie Forbidden Planet. No? You should check it out—it’s an odd mix of retro camp and legit eeriness. In any event, the plot of the movie involves—spoiler alert!—technology that’s … Read More
There’s no end to the suboptimal alternatives to may. Here’s another—is permitted. You see is permitted to when a party is the subject of the sentence or clause: … Sponsor is permitted to assign this Agreement in connection with a merger or a sale or transfer of substantially all of its assets … … neither the Seller nor the Purchaser shall … Read More
As part of what is shaping up to be a frenetic September, I’m pleased that I’ll be giving the following “Drafting Clearer Contracts” seminars with Asian Legal Business (part of Thomson Reuters): Seoul, Friday, 2 September Tokyo, Monday, 5 September Bangkok, Thursday, 8 September On important advance over my previous seminars with Asian Legal Business is that in addition to offering … Read More
Business Law Today contains an article entitled Data, Contracts, and Making Hard Decisions—Changing the Way We Manage Risk. It’s by Jamie May, associate general counsel at University Hospitals in Cleveland, Ohio. I had the pleasure of meeting Jamie a few years ago, when he wore a different hat, and I’ve corresponded with him sporadically. Here’s the first paragraph of Jamie’s article: Contracts … Read More
At the suggestion of @saBEERmetrics I listened to episode 590 (“Choosing Wrong”) of This American Life, the weekly public radio show. I’m glad I did, because it’s about inertia, and in a couple of respects it’s relevant to what I do. What Stops You from Doing What Makes Sense In act one of the episode, Malcolm Gladwell discusses the notion of beliefs and … Read More
The phrase the foregoing occurs frequently in contracts. I haven’t found a court opinion in which the meaning of the foregoing was at issue, but I don’t feel the need to wait for such an opinion to come along: because it could be unclear what the foregoing refers to, I recommend you not use the foregoing. Consider this: Sentence one sentence one sentence … Read More
