I’ve written occasionally about principles of interpretation (also referred to as “canons of construction”) used by courts. In this post I say that “they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent.” I said pretty much the same thing in this recent tweet: People use the phrase "canon of construction" because it sounds grander than "convenient fiction". … Read More
You might recall that in this September 2015 post I discuss how Bryan Garner has defied anyone to produce a case in which including but not limited to has been held to introduce an exhaustive listing—in other words, a case in which the list following including but not limited to has been held to restrict the meaning of the general class. In … Read More
Today I noticed the following tweet by @ronfriedmann: Example of bad lawyer contract drafting. Is answer #DoLessLaw or #DoMoreLaw? pic.twitter.com/pmifezzDZ0 — ronfriedmann (@ronfriedmann) January 15, 2016 The quoted contract provision—and yes, it’s craptastic—caused me to don my full-face respirator and scurry to EDGAR, where I found lotsa contracts that use between or among the parties and variants. Here’s one: This Agreement … Read More
Regular readers of this blog will know that I’m, um, fallible. A recent post offered a brilliant example of that. In this comment, reader John Dorsey mentioned that might conveys a lesser degree of possibility than does may. I expressed doubt about that. John responded by pointing to one of my blog posts. It quotes The Cambridge Grammar of the English Language offering exactly that … Read More
On 26 April I’ll be giving a “Drafting Clearer Contracts” seminar in Vancouver for Osgoode Professional Development. Go here for more information. And on 27 April I’ll be giving my “advanced” seminar entitled “An Intensive Program in the Categories of Contract Language.” Go here for more information. I’ve done this seminar twice in Toronto, and I’ll be doing it in … Read More
Last week Glenn West—this Glenn West—told me about Pivotal Payments Direct Corp. v. Planet Payment, Inc., No. CVN15C02059 EMD CCLD, 2015 WL 9595285 (Del. Super. Dec. 29, 2015) (PDF here). It involves representations. And warranties. He expected that I would freak. I can see him cackling and rubbing his hands together. Anyone who has read this blog for a while knows that those terms can get … Read More
I noted with interest this post on ContractsProf Blog by @StaceyLantagne. It’s about one of the lawsuits prompted by the ruling that Apple had engaged in anticompetitive price-fixing in ebooks. The opinion is DNAML Pty, Ltd. v. Apple Inc., No. 13CV6516 (DLC), 2015 WL 9077075 (S.D.N.Y. Dec. 16, 2015) (PDF here). In it, the court held that the plaintiff lacked the standing to … Read More
Linguistics nerdiness follows. Don’t say I didn’t warn you. Consider the following, at MSCD 13.551–.52: Black’s Law Dictionary defines reasonable as follows: “Fair, proper, or moderate under the circumstances.” So determining whether someone has acted reasonably requires an objective inquiry—you consider the circumstances, not the actor’s intent. That’s the meaning of reasonable as it’s used in, for example, a reasonable fee and in … Read More
I did my first series of “Drafting Clearer Contracts” webcasts way back in 2009. At long last, with the help of my partner in Canada, Osgoode Professional Development, I’ve created a new series. It consists of five segments, each a little over an hour long (well, the fifth segment is around 1.5 hours). Each segment will be launched with a “live” … Read More
You like fights over indemnification language? OK, here’s a reliable source of disputes: whether an indemnification provision covers just nonparty claims or whether it also covers claims between the parties. I wrote about that in this 2011 post, but given the perils of copying and pasting dysfunctional contract language, you can expect that sort of dispute to crop up in … Read More
