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 […]
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 […]
A cautious drafter would be advised to include in a comprehensive forum-selection provision elements that might seem redundant. Here’s why:
An agreement could provide for either permissive (also know as non-exclusive) jurisdiction or mandatory (also know as exclusive) jurisdiction. The following language provides for permissive jurisdiction:
Any party commencing against the other party any legal proceeding (including […]
Regarding use of the word parties as a defined term, MSCD 2.42 says the following:
[D]o not use the defined term the Parties. It ostensibly spares the drafter from having to refer throughout a contract to the parties to this agreement, but one can simply refer to the parties, because such a reference could not conceivably […]
Via the InHouse Blog I learned of a briefing paper written by Leon N. Ferera, John R. Phillips, John Runnicles, and Jeffery D. Schwartz of Jones Day entitled “Some Differences in Law and Practice Between U.K. and U.S. Stock Purchase Agreements.”
It touches on various subjects of interest to me, but what caught my eye in […]
A reader recently sent me the following email:
I’d appreciate your comments on an issue that’s been plaguing me off and on. I often see contracts with a fixed term. This works for a lease or license or a funding agreement where government agrees to provide funding to an entity for a specific period. At the […]
The November 6, 2006, issue of the National Law Journal contains my article on pre-closing knowledge of inaccurate representations. Go here for a copy. I apologize for the small print.
I had given it the title “M&A Contracts: Addressing Pre-closing Knowledge of Inaccurate Representations,” but of course that wasn’t catchy enough for the editorial staff, who […]
A standard ingredient of contract boilerplate is the “successors and assigns” provision. Here’s what a run-of-the-mill successors and assigns provision looks like:
This agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.
I’ve long considered the successors and assigns provision to be one of the abiding mysteries […]
Drafters should be aware of laws that can trump provisions of a given contract.
A good example of this is the way the U.S. Bankruptcy Code can render unenforceable contract provisions that restrict assignment of rights under a contract or give a party the right to terminate if the other party files for bankruptcy.
To improve my […]
I’ve recently been thinking about the concept of “survival.” It crops up in contracts in three ways, and in each of those contexts it’s either unnecessary or inferior to an alternative approach. I discuss each of these three contexts below.
Survival of Claims
Sometimes an agreement will specify that any claims that arise before an agreement terminates […]
This weekend, I decided to explore the implications of the Buyer knowing, pre-closing, that a Seller representation is inaccurate. (I haven’t seen the various aspects of this topic treated together in any detail from the perspective of the drafter.) Here’s what I put together; you should consider it a first draft. I’d be happy to […]
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