As I was packing up after a recent in-house seminar, one of the participants—I’ll call him Sam—came up to me to discuss a point I had made. I had said that the phrase indemnify and hold harmless is pernicious, in that it invites litigators and judges to find nuances of meaning where most likely none had been intended. (For more … Read More

I subscribe to the RSS feed of Mondaq.com, a repository of law-firm white papers, newsletters, whatever you want to call them. Occasionally something will show up that falls within my bailiwick, and last Friday I spotted a white paper issued by the English law firm Lawrence Graham LLP entitled “Drafting Contracts: How Useful Is the Boilerplate?” I set it aside … Read More

I should have had enough of material and material adverse change, given that I discuss materiality in chapter 7 of MSCD, in this law review article, and in this article in the M&A Lawyer. But the topic continued to nag at me, and recently the fog cleared—I realized that my analysis was significantly flawed, and I also figured out how … Read More

Recently someone from the plain-English camp chided me for disagreeing with “the more progressive view” that one should avoid shall in contract drafting. Such potshots are, I suppose, inevitable if you publish enough, and they’re best ignored. But what good is a blog if one can’t occasionally use it to set matters straight? So here goes: My critic says, in … Read More

The issues of word choice that I discuss in MSCD are ones that drafters are likely to encounter repeatedly. In your day-to-day drafting, you’ll probably come across many other, quirkier issues. Here’s one I encountered today. I’m currently revising a software license agreement. It includes, in the section dealing with what’s meant to happen when the license terminates, the following … Read More