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
Yesterday I encountered a contract that had this title: LICENSE, SUPPLY, MARKETING, AND DISTRIBUTION AGREEMENT I find such titles annoying. Imagine having to say, for example, “Did you receive the revised license, supply, marketing, and distribution agreement”? Inevitably you’d end up calling it something else. So give it a different title. You could give it a broader conceptual title. I … Read More
I’m delighted that on Monday, 7 November, I’ll be doing another “Drafting Clearer Contracts” seminar in London with UCL Faculty of Laws. Go here for more information. And go here for feedback from participants at one of my previous seminars for UCL Faculty of Laws. I think it’s safe to say that among commentators on English contract drafting, mine is … Read More
Live or work in or around Seattle? Good—listen up: Starting at 4:15 p.m. on June 23, 2016, immediately after my Seattle “Drafting Clearer Contracts” seminar, Thomson Reuters Contract Express and I will be holding a free cocktail reception at the Washington Athletic Club, 1325 Sixth Avenue, Seattle, WA 97101. I’ll discuss how automation offers the most effective way to scale rigorous contract language. I’ll show you … Read More
MSCD offers two ways to create defined terms: autonomous definitions and integrated definitions. Here’s an autonomous definition: “SEC” means the U.S. Securities and Exchange Commission. Here’s an integrated definition, with its associated defined-term parenthetical: … Acme Incorporated, a Delaware Corporation (“Acme”). But one also sees a different way of presenting definitions: as autonomous definitions, but with the defined term placed at the … Read More
You remember my book The Structure of M&A Contracts? Yeah, that one. It was published in 2011, ebook only, using Thomson Reuters’s Proview platform. But for reasons that I never quite understood and would rather not dwell on, buying it was a nightmare. Every month or two I would receive an email from someone who had tried to buy it … Read More
This contains my first attempt at expressing something I’ve been mulling over for a while—the notion of “floating vagueness.” I’m prepared for it to end up in the dustbin. [Updated 25 June 2016: Hey guess what, it did end up in the dustbin! I found a way to express more simply the concepts I was groping for. My revised analysis will … Read More
In a spirit of adventure, I published on Thomson Reuters’ Legal Solutions Blog my article Litigating the Meaning of Contract Language? Consider Retaining an Expert. It’s not a long article, but they did it in two parts. Go here for part I; go here for part II. My thanks to Pam Chestek for bringing to my attention the case I … Read More
Here’s an oddity: to the extent it is able to do so. (Variants include to the extent that it is able to do so, to the extent she/he is able to do so, to the extent they are able to do so, and to the extent [insert party name] is able to do so.) A search on EDGAR pulled up … Read More
I’ve written about abuse of basis, as in on a timely basis. See this 2007 post. But silly me, I didn’t think of the most jargontastic variant, on an ongoing basis. Don’t ever use it. If you ever have, plead forgiveness from the gods of drafting. If you don’t believe me, here are some examples from the La Brea tar … Read More
