Hey, I have a great idea! I’m going to express in sequence several sentences with the same subject and verb. So I’m going to save some words by stating the subject and verb (for example, Acme shall) as introductory text and stating the remainder of each sentence as one of a series of integrated or tabulated enumerated clauses. For example, … Read More
In 2015 I did this post about the phrase good and valuable consideration. Well, I underestimated how stoopid it is. Here’s an example of a traditional recital of consideration: NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the … Read More
Inspired by this morning’s post about not making contract language too informal, here are my 11 commandments for drafting business contracts: Contract language should be clear. Contract language should be only as complicated as it needs to be. Contract language should be precise. Contract language should omit redundancy. Contract language shouldn’t say the same thing twice. Contract language should be … Read More
[Updated 10:30 p.m. ET, 9 May 2022: Thanks to Josh’s comment, I now have a different take on 24/7. It’s not limited to contracts—one hears 24/7 in all sorts of contexts. So I don’t think it’s jargon. Instead, it’s informal. I suspect that it’s more common in speech than in writing; that’s often the case with informal usages. But it’s … Read More
You’re familiar with “the tragedy of the commons,” right? Individual users have open access to a resource. In using that resource, they’re unconstrained by formal rules or shared social structures, so each user acts independently according to their own self-interest. But that’s inconsistent with the common good, because through their uncoordinated action, users deplete that resource. Hence the tragedy. The … Read More
A casualty of the fourth edition of A Manual of Style for Contract Drafting was what had been chapter 20 of the third edition, entitled “Drafting Corporate Resolutions.” I figured that the book had gotten big enough that that chapter, which doesn’t have anything to do with contracts, would be clutter. But that chapter is a good example of what … Read More
Selling services is very different from selling stuff, so contracts for one are different from contracts for the other. Yet drafters are prone to deploying in contacts for the sale of services concepts that make sense only for selling goods. One example of that is saying that services are being sold “as-is.” When you sell a car “as-is,” that means … Read More
As a companion piece to this blog post from last week about putting the date of the contract in the introductory clause, in this post I’ll explain why it’s not a good idea to use as the date of a contract a date that reflects timing of performance. To capture past performance, drafters sometimes use in the introductory clause a … Read More
Generally, action is better than gestures. But gestures can lead to action, so I’m amenable to gestures. For example, perhaps ten years ago I was surprised to have a training participant suggest that I not use guys when addressing the men and women in the group. At first I wasn’t convinced, but now, no guys. Similarly, in the past few … Read More
I’ll now revisit something I last wrote about in 2013: double materiality. Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified by materiality: The Seller’s financial records contain no inaccuracies. The Buyer’s obligation to consummate the transaction contemplated by this agreement is subject to satisfaction of … Read More
