Blog

Excuses for Sticking With Traditional Contract Language

4 March 2022 by Ken Adams

Although no one publicly challenges my recommendations (see this 2018 blog post), I’ve occasionally encountered, in writing and in private exchanges with lawyers and law-school faculty, general arguments for sticking with traditional contract language. Here’s my taxonomy of those arguments. Claiming That Traditional Contract Language “Works” One such argument is that traditional contract language “works.” (See for example this 2017 … Read More

With My Stuff, You’re OK Making a Leap of Faith

23 February 2022 by Ken Adams

Learning involves relying on others. It’s not remotely feasible for everyone to, uh, do all their own research. Instead, you have to rely on others who really have done research and written it up in a way that makes it accessible. But who do you rely on? The overwhelming majority of commentary out there isn’t reliable, or it’s lightweight. For … Read More

M&A Drafting: The Redundant Reference-Point Exception in the Bringdown Condition

16 February 202215 February 2022 by Ken Adams

I’ve been working on an article on the word material, so that sent me back to my book The Structure of M&A Contracts. The book is due for an update, so I’d like to do a second edition sometime, one that makes it easier for people to buy the book! But I’ll use this post to revisit one point I … Read More

“Warranty” and “Condition”: Revisiting Problematic English Terminology

7 February 20226 February 2022 by Ken Adams

[This is my redo of this 20 November 2018 post. I decided I could do much better.] Let’s revisit this 2012 IPDraughts post, by Mark Anderson. It will allow us to consider some English contract-law terms of art. I’ll let you read Mark’s post for the background. The gist of it was that in a dispute over an allegedly defective … Read More

Yet Another Unedifying Canadian “Efforts” Case

29 January 2022 by Ken Adams

Courtesy of tipsters who DMed me on Twitter, I bring you Sutter Hill Management Corporation v. Mpire Capital Corporation, a case before the Supreme Court of British Columbia (here). Here’s the contract provision at issue: The Purchaser shall use commercially reasonable best efforts to satisfy the condition precedent set out in this Section 2.5 as soon as possible. Commercially reasonable … Read More

How Statements of Fact and Preclosing Obligations Relate to Conditions to Closing

17 January 2022 by Ken Adams

With some trepidation, I now tiptoe into law-and-economics territory. Specifically, how standards for statements of fact and preclosing obligations in mergers-and-acquisitions contracts relate to standards for conditions to closing. Widgetco and Acme (both private companies) enter into a contract under which Widgetco would acquire Acme. The contract provides for a delayed closing. Acme makes a statement of fact in the … Read More

Principles of Interpretation Aren’t “Rules of Grammar”!

13 January 202212 January 2022 by Ken Adams

A tipster with a sense of humor sent me a link to an opinion of the Minnesota Court of Appeals, Borth v. Borth, No. A21-0571, 2022 WL 90612 (Minn. Ct. App. Jan. 10, 2022) (here). This dispute involves our old friend, syntactic ambiguity. I’m not about to go into the details, because to stay sane, I have to ration the … Read More

Dual Verb Structures: “Is and Will Be”

9 January 2022 by Ken Adams

You lucky people, here’s another in my sporadic posts on dual verb structures! This time, we have under the spotlight is and will [or shall] be. As with verb structures generally, you can do better than is and will be. Awkward Grouping One explanation for use of is and will be is that the drafter structured things awkwardly. Here’s an … Read More

Using “Including” for Stuff That Isn’t Part of the Class

6 January 2022 by Ken Adams

Today I put this out on Twitter: Has anyone encountered an instance of someone seeking to use "including" to add to a class something that categorically would not otherwise be part of the class? For example, "fruit, including carrots." — Ken Adams (@AdamsDrafting) January 6, 2022 This question came to mind because it’s one aspect of including pathology that I … Read More

ECB USA, Inc. v. Chubb Insurance Co. of New Jersey: More Comma Sadness

7 November 20245 January 2022 by Ken Adams

If there’s one thing I’ve learned, it’s that you’d have to look far and wide to find a judge who has a clue about commas. Thanks to the opinion in ECB USA, Inc. v. Chubb Insurance Co. of New Jersey, No. 20-20569-CIV, 2021 WL 5989230 (S.D. Fla. Dec. 17, 2021) (PDF here), we have further reason for despair in that … Read More

The voice that matters.