Ah, what would life be without disputes over and and or! Here’s a fresh one (thanks to cousin Joshua Stein for alerting me) that arose in connection with a series of transactions that freed Caesars Entertainment from having to guarantee a portion of the $18 billion of debt of its subsidiary Caesars Entertainment Operating Co. As a result, investors lost something like $450 million on … Read More
I noticed a recent case out of the U.S. District Court for the Eastern District of Wisconsin, Redmond v. Sirius International Insurance Corporation (here). The language at issue used and/or. Here’s what the court had to say: The plaintiff contends that the court must reconsider its denial of his motion for summary judgment because the use of “and/or” in the policy … Read More
Thanks to this post on Peter A. Mahler’s New York Business Divorce blog, I learned that in a recent opinion of the New York Supreme Court (despite the name, a lower court), a judge considered the implications of either … or. I wasn’t about to let that pass without chiming in—regular readers will know that I have a thing about … Read More
I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget the confusion over a “hereunder”? (See this post). Or over “except as provided below”? (See this post.) Well, I have another treat for you. (Yes, I know, I’m too generous.) The case is Bayerische Landesbank, New … Read More
Via prolific tipster Steven Sholk, I learned of this post, by Nathaniel Grow, on Sports Law Blog about baseball player Alex Rodriguez’s legal maneuvering in response to his being suspended by Major League Baseball for having taken performance-enhancing drugs. Here’s the part that caught my eye (hyperlinks omitted): However, as the arbitration decision reveals, Rodriguez’s suspension was not based on … Read More
Via this post on Legal Writing Prof Blog I learned of a recent opinion of the Second Circuit Court of Appeals that involved an odd instance of confused enumeration in a contract. The case is Karmely v. Wertheimer (here). It’s discussed in this post on allgov.com. The facts are way too involved for me to get into, but here’s the … Read More
Cousin Joshua Stein sent me a copy of an article in the May/June 2012 issue of Probate & Property. It’s by Mark A. Senn, and it’s entitled Writing Good, Legal Sense and More or Less. (Go here for a PDF copy.) As you can tell from the title, it’s a little offbeat, but it contains a couple of tidbits that … Read More
In the course of revising a draft contract, I encountered the following; Upon occurrence of a Change in Law or a Force Majeure Event that adversely affects the Seller’s performance under this agreement, the Buyer and the Seller shall negotiate in good faith whether to issue a change order addressing the effect of those circumstances and the terms of any … Read More
A latecomer to the MSCD family of ambiguity is antecedent ambiguity—uncertainty over what the antecedent is of a given element. But it’s certainly making up for lost time. Today, thanks to that relentless source of leads known as Steven H. Sholk, I’m able to offer you an instance of antecedent ambiguity from the hot-off-the-presses opinion of the Delaware Court of … Read More
Here’s what MSCD 13.761–62 has to say about willful and willfully: As it’s usually used in contracts, the word willful, as in willful misconduct, is not only vague but also ambiguous. It means intentional,” but drafters usually don’t make it clear whether the focus is on the party’s action or on the consequences of the party’s action—it’s possible to act intentionally without intending to … Read More
