Recently I saw this tweet by @strowhiro:
Hey, #lawtwitter.
Contracts with a defined terms section AND other terms defined throughout: fine or sloppy?
— Michelle Strowhiro (@strowhiro) October 19, 2022
It’s a great question, but I thought that the odds of getting clear answer on Twitter were slim, even with 164 people taking a shot at it.
To my knowledge, only two people have written about this in any detail. One is Howard Darmstadter, in his book Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting. The other is me. (I cheerfully admit that I owe a debt to Howard for getting me to think about this.) Howard is spending his time on other stuff these days, so I wouldn’t have expected him to offer an answer. And I wasn’t inclined to distill into a few tweets what occupies a couple of pages of A Manual of Style for Contract Drafting.
I said as much in a reply to Michelle’s tweet, but I decided that seemed a little churlish. Generally, anything I address in MSCD makes some sort of an appearance on my blog, but that’s not the case with this issue. So in a tweet, I told Michelle that I’d post on this blog the relevant pages of MSCD. Hence this post: you can find those pages here.
Mind you, I was wrong about Twitter not offering a clear answer. For example, the following tweet from @amess captures my position quite nicely. I was just being lazy!
The punchline is in MSCD 6.94 — general terms and defined terms where the meaning is generally known (but may vary from deal to deal) in the definition section. Unique terms in the text.
The MSCD is well-worth the cost, FWIW.
— Aaron Messing 🇺🇦 (@amess) October 20, 2022
(Given that Elon Musk just acquired Twitter, let’s see whether tweet-heavy posts become a thing of the past.)
