I’m on the panel for a webcast on the topic of “Contracts in the Technology Sector.” It’s being hosted by West Legalworks; click here to go to relevant page of the West website.
It’s being held on Friday, May 23, from noon to 1:00PM EDT. It will also be available on demand. I hope you’ll be […]
Reader Larry Bell pointed out to me that the April 2008 issue of Corporate Counsel’s Quarterly contains an article by the publisher’s editorial staff entitled “Best Efforts Clauses.” I’m afraid that I can’t provide a link, as I have only a hard copy.
When it comes to guidance on drafting usages, I’m not particularly a fan […]
I recently posted this item discussing Lexicon, a tool for organizing and checking defined terms. Lexicon’s website contains a page discussing “The Seven Deadly Sins of Defined Terms.” Among the sins described is the following:
Overlapping Definitions–When one Defined Term is contained within another, confusion can arise. For example, if (1) “Company,” (2) “Company Promissory Note,” […]
It’s that time again: I’m looking for a company that would be interested in taking part in a contract-redrafting project with my class at the University of Pennsylvania Law School.
The idea is that I’ll select one contract out of those submitted by June 15. In the fall 2008 semester my class will redraft all or […]
Considering having me do an in-house seminar but want to know more? Then I suggest you might want to have me give you and any other decisionmaker at your organization a run-through of whichever of my seminars interests you, “Contract Drafting—Language and Layout” or “The Structure of M&A Contracts.” We’d use GoToMeeting or WebEx so […]
A few books on contract drafting have been published in the last couple of years:
Butt, Peter & Castle, Richard, Modern Legal Drafting: A Guide to Using Clearer Language (2d ed. 2006).
Darmstadter, Howard, Hereof, Thereof, and Everywhereof (2d ed. 2008).
Haggard, Thomas R., and Kuney, George W., Legal Drafting in a Nutshell (3d ed. 2007).
Kuney, George W., […]
In case you’re interested, here’s the latest on MSCD2:
I wasn’t satisfied with the design of MSCD, so I was ready for a fight over the design of MSCD2. But I’ve just seen some sample pages, and they look great. I’m already looking forward to seeing the finished product.
I’m currently working on the last item that […]
The site was offline for most of yesterday due to high drama involving my server. Sorry about that; it shouldn’t happen again.
Here are the U.S. cities where I’ll be giving my “Contract Drafting—Language and Layout” seminar with West Legalworks in the second half of 2008:
Seattle, Thursday, July 17
Washington, D.C., Wednesday, September 24
Minneapolis, Thursday, October 16
Boston, Wednesday, October 29
New York, Tuesday, November 18
San Francisco, Tuesday, December 9
Click here to go to the relevant page of West Legalworks’ […]
Here’s what The Chicago Manual of Style 8.55 has to say about use of initial capitals in references to political divisions:
Words denoting political divisions—from empire, republic, and state down to ward and precinct—are capitalized when they follow a name and are used as an accepted part of the name. When preceding the name, such terms […]
In this November 2006 post I wrote about words that are fine in narrative writing but would be out of place in a contract.
Well, I’ve thought of some more—therefore and related words such as thus, hence, and consequently. Here’s an example I just spotted:
The term of this agreement will end three years following the date […]
Here’s a standard waiver provision:
Waiver. No provision in this agreement may be waived, except by means of a writing signed by the party against whom the waiver is sought to be enforced.
I find such provisions very odd.
Let’s start by considering what a waiver is. There are two kinds of waiver:
First, a contract might specify that […]
I’m going over one of my contract redrafts. Here’s how I introduced a set of autonomous definitions:
For purposes of this agreement, the following terms have the following meanings:
You see this language, or some variation, in innumerable contracts. I’m not crazy about the way it groups the definitions, thereby leaving open the possibility that one defined […]
In this May 2007 post I wrote about the signature-automation tool EchoSign. And my ACC Docket article with Brian Quinn mentions DocuSign.
Well, there are other fish in that particular sea. I noticed that The Connected Lawyer—always a source of interesting information—recently posted about one of them, ConXPoint.
Another is Sertifi. I’ve corresponded with John Stojka, a […]
In this July 2006 post I said that although it’s standard to refer to “survival” of representations, it’s unhelpful to do so. I quoted language that I find much clearer.
Well, it would seem that both the traditional language and my preferred language were found wanting in a 2007 case applying California law that I saw […]
In February, the New York Law Journal published my article about the litigation between Cerberus and United Rentals. If you’re hungry for more on the subject, check out this article in the American Lawyer. I make a brief guest-appearance.
One frustrating aspect of my self-appointed role as freewheeling contract-drafting guy is that I’m not involved, day in and day out, in drafting contracts. As a result, I don’t have occasion to gain hands-on experience with the nifty information-technology tools that are now available to help the drafter.
I wrote about a bunch of them in […]
Victoria Pynchon—she of the Settle It Now Negotiation Blog—asked me the following question:
While I was practicing, it was common for the opposition to put signature lines on settlement agreements for the attorneys’ signatures. I always refused to sign these, saying, “I’m not a party to this contract and I don’t think my signature adds anything […]
It’s been a couple of months since I looked through recent opinions. It’s time for me to get back into the habit of doing so, because all sorts of interesting issues crop up.
Consider Moore v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 30480 (N.D. Miss. Mar. 31, 2008). It bears on how you create the […]
Here’s another issues that cropped up during my Geneva seminars: Which is preferable, change in control or change of control?
My instinct was that both usages are equally acceptable, and that was borne out by five minutes of research. Contracts filed on the SEC’s EDGAR system don’t seem to display a marked preferance for one usage […]
During one of my Geneva seminars this week, someone asked me whether it’s better to say listed/described/stated in schedule X or on schedule X.
I’d been asked this question a couple of times previously, and I’d responded that I wasn’t sure that I cared. But on being asked a third time, it dawned on me that […]
On Friday I’ll be heading for Geneva, where I’ll be giving a series of public seminars from April 21 through April 25. Click here for more information.
If you want to explore the language of contracts in the company of a few like-minded people, these seminars would provide an unmatched opportunity.
I often come away from a seminar having learned something new.
For example, a participant at my recent Vancouver seminar asked me what I thought of the phrase dated for reference, as used in the introductory clause. I confessed that I hadn’t previously encountered it.
After I arrived home, I searched on Lexis for use of the […]
I don’t include in the introductory clause the address of a party that’s a legal entity. That’s because the introductory clause serves to distinguish a given party from any other person or entity with that name. For a legal entity, that’s accomplished by giving its jurisdiction of organization or its registration number; you don’t also […]
I’m now home after a whirlwind visit to Bahrain. I arrived from Oman on Wednesday afternoon, did a seminar on Thursday, then left on Friday morning.
The seminar was under the auspices of the ABA’s Rule of Law Initiative. My chaperones were James MacPherson and John Porter, who has just replaced James as the ABA’s resident […]
Ah, the glamorous life of the contract nerd! Vancouver one week! Oman and Bahrain the next! Philadelphia in between!
But more mundane work goes on: I spent my first day in Oman in my hotel room, working on the manuscript for MSCD2. Thanks to the valiant efforts of the all-volunteer AdamsDrafting proofreading irregulars, it’s in great […]
How do I love Canada? Let me count the ways:
It was a Canadian organization—Osgoode Professional Developement—that asked me to do my first public seminar.
Attendance at my seminars in the U.S. with West Legalworks can fluctuate wildly, but my Osgoode seminars in Toronto sell out. (The next one is on June 16.) And last week 60 […]
This post comes to you from Muscat, Oman. I’m here under the auspices of the Rule of Law Initiative of the American Bar Association, at the request of the Sultanate of Oman Ministry of Legal Affairs.
Yesterday I held my “Language and Layout” seminar for a team of Ministry lawyers responsible for reviewing and drafting contracts […]
This from the Lex column in today’s Financial Times, regarding Bear Stearns and the Cerberus litigation:
It is too simplistic to blame sloppy drafting for disputes. Still, there may be room for improvement in terms of updating the often-archaic language used in merger agreements, as firms such as Jones Day and contract specialist Kenneth Adams have […]
Input from readers of this blog has already served to enhance the second edition of A Manual of Style for Contract Drafting. But why stop there?
I’ve just sent the ABA the manuscript for MSCD2. I enjoyed putting it together, as it contains a boatload of new material. What it needs now is proofreading, and that […]
Special thanks to reader Tony for reminding me of a usage that had slipped my mind: becoming party to a contract with respect to only certain provisions.
For example, in an acquisition, the buyer’s parent might be party to the acquisition agreement solely to guarantee the buyer’s obligations or solely to undertake to pay a termination […]
[Update March 24, 5:30PM EDT: Some people are suggesting that there’s something fishy to the story of Wachtell’s “mistakes.” See, for example, this post at Dealbreaker, and this one on the Conglomerate Blog. On the other hand, Steven Davidoff’s analysis, at DealBook, takes the story at face value. I’ll let others who are closer to […]
I’m grateful to stalwart readers Steven Sholk and Mike Wokasch for contacting me about the Bear Stearns merger agreement. (Click here to go to a PDF copy.)
This deal raises all sorts of policy issues, but we at AdamsDrafting say to heck with the big picture—let’s look at the drafting angle! I offer below some random […]
I’m working on the introduction to MSCD2, and five minutes ago I wrote this:
English is used in contracts around the world, and not only in contracts between companies from English-speaking countries. English has become the lingua franca of international business, so a contract between, say, a French company and a Brazilian company is more likely […]
I can think of five issues relating to how you state amounts of money in a contract.
Words and Numerals
Drafters will often do the words-and-numerals thing when stating amounts of money: Acme shall pay Widgetco One Million Dollars ($1,000,000). The idea is that whereas numerals are easier to read than words, they’re more prone to typographic […]
Most of what I do addresses how to express clearly and efficiently whatever you want to express in a contract. But that only goes so far, because no amount of clarity will help you if you simply mishandle an important substantive issue.
This story in the ABA provides a reminder of that. A Texas law firm […]
I’ve written at inordinate length about how MAC provisions are used in contracts and how MAC is defined. But I don’t much get into whether, and how, MAC provisions are actually invoked in deals, unless issues of contract language come into play. For a useful discussion of such policy issues, see this DealBook story by […]
[I was prompted to write this post after consulting, over the past few months, dozens of cases ostensibly involving ambiguity but in fact dealing with a range of other problems. I plan on including a version of this in MSCD2, so I’d be pleased to receive comments.]
Uncertainty in contract language arises principally from six sources—ambiguity, […]
Reader Michael Fleming informed me of US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 U.S. Dist. LEXIS 10841 (D. Minn. Feb. 11, 2008). This case serves as a reminder that a court would likely conclude that if Smith promises to purchase widgets from you, you’ve in effect also promised to supply widgets […]
Here’s a quick way to save three words: instead of saying in accordance with the terms [or provisions] of section 6, say simply in accordance with section 6.
Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view:
When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to address […]
As I noted in this post, from April 21 through April 25 I’ll be giving my “Contract Drafting—Language and Layout” seminar at the Geneva, Switzerland offices of Hogan & Hartson.
Well, I’ve now upgraded the registration system. For one thing, you can now pay by credit card, if you wish. To go to the registration page, […]
Bylaws is spelled both with and without a hyphen. For example, Black’s Law Dictionary gives a definition for bylaw but notes that it’s sometimes spelled by-law.
So which is preferable?
It appears that bylaw is gaining the upper hand. For example, the 1915 edition of Robert’s Rules of Order Revised used by-laws but the current edition, Robert’s […]
In a recent post I suggested that accurate is a “less dopey” alternative to true and correct. (Yes, I know, I too thought that an impressive turn of phrase.)
That led a reader to suggest to me that complete and accurate is preferable to accurate. Presumably he had in mind that if you give me a […]
I suggest that for purposes of contract drafting, you can always do without automatically.
Consider the following fragment:
… and each January 1 thereafter, this agreement will be automatically extended for one additional year unless not later than …
I suggest that eliminating the word automatically wouldn’t affect the meaning.
The same goes for automatically in the following fragment:
… […]
Perhaps because they’re aware that I’ve had occasion to consider punctuation, some readers contacted me about the February 18 New York Times article about use of a semicolon in a New York City Transit subway placard.
Here’s the one thought that came to mind: In contracts, I use semicolons between integrated enumerated clauses when they’re preceded […]
I’m pleased to announce that from Monday, April 21, through Friday, April 25, I’ll be giving five consecutive one-day seminars on “Contract Drafting—Language and Layout” at the Geneva, Switzerland offices of the global law firm Hogan & Hartson.
All are welcome to register. The seminars are being supported by ACC Europe and by the International Bar […]
Today’s issue of the New York Law Journal contains my article on the recent litigation between Cerberus and United Rentals. Click here to go to a PDF copy. It’s also available at the NYLJ website if you’re a subscriber.
A couple of days ago reader David Munn—ever vigilant against the forces of contract-drafting darkness—sent me the following:
I couldn’t find that you had blogged on one of my pet peeves, which is the overuse of the word “respective,” as in “All capitalized terms that are used but not defined in this SOW have the respective […]
In the past year, 265 contracts filed as “material contracts” on the SEC’s EDGAR database contained a provision stating that the recitals were true and accurate. Here’s an example:
The above recitals are hereby made a part of this Agreement and the Borrower acknowledges and agrees that each of the recitals is true and correct.
That’s not […]
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