This Blog, One Year In

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

Read Any Good Law Reviews Lately?

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

An Alternative to Indemnification Language for Confidentiality Agreements

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

Follow-Up on Consequential Damages

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

Practitioners and Scholarship: Oil and Water?

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

More Boilerplate Redundancy: Expressing Both the “Entire Agreement” Concept and the “Merger” (or “Integration”) Concept

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

Don’t Use “Collectively” with a Singular Noun

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

Another Steaming Helping of Syntactic Ambiguity

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

Poor Drafting in the Chesapeake Energy Debacle

In his most recent post on Weil’s Global Private Equity Watch (here), Glenn “Iceman” West discusses a recent Second Circuit opinion relating to Chesapeake Energy’s redemption of $1.3 billion in notes based on Chesapeake’s interpretation of the notes’ supplemental indenture. The supplemental indenture designates the period between 15 November 2012, and 15 March 2013 as the “Special Early Redemption Period.” … Read More

The Semantics Fallacy Underlying “Represents and Warrants”

[Update: For my definitive take on this subject, see my article Eliminating the Phrase Represents and Warrants from Contracts, 16 Tennessee Journal of Business Law 203 (2015).] Yes, I know that I’m getting tiresome, they way I harp on about represents and warrants, like a dog worrying a bone. But I have a new element to add to my analysis. At … Read More