[I’ve deleted this post because it has been supplanted by this post. Sorry for the discombobulation!]
About the author
Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.
8 thoughts on “What Terms of Art Are Indispensable? (Deleted Except for Comments)”
Do any of these count?
Terminate, good and workmanlike manner, supersede, disclaims, consequential (and other kinds of) damages.
If so, I have more that are comparable.
Chris: “Terminate” isn’t a term of art, it’s just a regular word. I know that you’re partial to “end,” but there are obstacles to using “end,” as discussed in this post.
I don’t think “good and workmanlike manner” is a term of art. It’s just I’m-a-stuffy-lawyer lingo. A legalism isn’t a term of art.
“Supersede” is regular English.
“Disclaim” is a term of art, and in
this post I say the heck with it.
“Consequential” is a term of art, a really pernicious one: hardly anyone has any idea what it means. So it should be consigned to oblivion toot sweet. See this post.
And following up on your email to me, yes, “representation” and “warranty” are terms of art. Regarding “no warranties” language, some of it is unavoidable, as the UCC says you have to say it. (Note, incidentally, that the UCC doesn’t use the word “disclaim.”)
I picked some of these because they have interesting problems.
When lawyers say that the agreement terminates, they are usually wrong. There are lots of provisions that continue beyond the end of the agreement. And their list of surviving provisions is usually wrong. For example, almost no one calls out the obligation to pay for services rendered before the contract ends. They just assume it.
Good and workmanlike manner has a specific meaning in a services arrangement. In Texas, it has been defined to mean that the results of the service are passable in the industry in question, usually with reference to someone reasonable skilled in the field.
I doubt that more than 2% of the population knows what supersede means.
i agree with you on disclaim, but use it anyway! Same with representation and warranty. It’s just too conventional to get away from easily.
On consequential damages, I stand by my comments on the post below. Saying “consequential damages” may be an awful shortcut, but it gets deals done.
Chris: Sure, “terminates” raises issues, some of which I’ve written about, but I think it muddies the waters to call it a term of art.
How has G&WM been defined? By statute or by caselaw? And anyway, having a term like that be given some specific meaning doesn’t mean that it makes sense to use it. After all, the legislature or courts had to weigh in because it was unclear.
And yes, I acknowledge in this post that you have to take resistance into account.
If you say that “represents” is a term of art, why do you say that “terminates” is not? What is the underlying rule that includes the first and excludes the second?
Good and workmanlike manner is defined in caselaw.
I often use “replace” for supersede, but not consistently.
There are no bright lines. In the minds of traditionalists, “represents” has a meaning that all nonlawyers, and many lawyers, wouldn’t derive from the word: traditionalists attribute to it a technical meaning.
On the other hand, there’s no mystery of “what “terminates” means. The broader implications might involve all sorts of subtleties, but the word itself is straightforward.
Ken, here are a few for starters:
grant licence (license)
assign [intellectual property]