I’m pleased to announce that West LegalEdcenter is now offering a new Koncision webcast, “Drafting and Reviewing Confidentiality Agreements.” It weighs in at 1 hour and 13 minutes and comes with CLE credit. Go here for more information. Joining me as co-presenters on the webcast are two of my favorite people, Chris Lemens and Glenn West. Both will be familiar … Read More
In this May 2011 blog post discussing the Texas Supreme Court’s opinion in Italian Cowboy Partners, I acknowledged that if you want to increase the odds of avoiding fraud liability for extracontractual statements of fact, it would be prudent to use “no reliance” language instead of just saying that Acme has made no representations other than those stated in the … Read More
Last December, I mothballed the AdamsDrafting blog and fired up The Koncise Drafter. If I were concerned about my stats, that move would have been a disaster—as it’s home to four years of my musings, the AdamsDrafting blog still gets about three times as many hits as The Koncise Drafter. But I’m not selling ads and don’t have to meet … Read More
As noted in this ABA Journal item, Chief Justice Roberts doesn’t find law reviews very useful. Neither do I. For purposes of this post, I’m taking “law review” to mean a scholarly journal that focuses on legal issues and is published by faculty or students at a law school or by a bar association. Every so often I glance at … Read More
It’s time that I tidied up one loose end. In this recent post, I proposed indemnification language to include in a confidentiality agreement in order to say who is responsible for liabilities resulting from disclosure of confidential information by representatives of the recipient. I thought that the new language would make it clear that when bringing a claim for indemnification … Read More
After chewing over the comments to this post on excluding consequential damages, I’m left with the following thoughts: I remain of the view that putting a cap on damages is the simplest and least contentious way to limit damages. And it can make excluding certain kinds of damages less relevant, or even entirely irrelevant. Whether a cap makes sense would … Read More
I’m prone to suggesting that the dysfunction in mainstream contract language can largely be attributed to the precedent-driven nature of transactional work. But perhaps another factor plays a supporting role. (Caveat: what follows is semi-informed speculation.) I suspect that a large majority of analytical materials relating to transactional work are prepared by practitioners. And of those materials, I suspect that … Read More
Let’s look at “entire agreement” provisions. Or maybe you call them “merger” provisions. Or “integration” provisions. Whatever. Guidance Consider this boilerplate provision offered in Commercial Contracts: Strategies for Drafting and Negotiating (Vladimir R. Rossman & Morton Moskin eds., 2d ed. 2021) § 26.04[C]: Entire Agreement. The Contract represents the entire and complete understanding of the parties with respect to its … Read More
Behold the following introductory clause. See the emphasized text? It defines a term individually and collectively—a practice I mocked in the preceding post—but it uses one defined term for the individually part and a different singular defined term for the collectively part. THIS FIRST AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of March 19, 2019 (this “Amendment”), … Read More
As someone should have said, The price of freedom from ambiguity is eternal vigilance. Today’s lesson comes to you thanks to the eternally vigilant Glenn D. West, the what-to-say yin to my how-to-say-it yang. He alerted me to the recent opinion of the Delaware Court of Chancery in Batty v. UCAR International, Inc. (PDF here). Here’s the relevant bit (footnotes … Read More
