A question from a reader: When the other party’s counsel does the first draft, I have to work within the confines of whatever I’m given. In my review, I focus on what doesn’t reflect the deal as I see it or what might cause confusion—trying to turn their draft into a thing of beauty would waste everyone’s time and might … Read More
Here’s one of today’s tweets: Today's pioneering plain-English initiative: god's acts>acts of god — Ken Adams (@AdamsDrafting) October 29, 2021 It wasn’t entirely inane. A symptom of legalistic jargon is if, in the case of a usage with two or more components, those components are fixed in a certain order. So the phrase is always acts of God, with the … Read More
From this post on D.C. Toedt’s blog I learned about Miller v. Honkamp Krueger Fin. Servs., Inc., No. 20-3061, 2021 WL 3729047 (8th Cir. Aug. 24, 2021) (PDF here). It’s of interest as an instance of a drafter making an odd mistake. In 2006 Miller entered into an employment agreement with HKFS. Among other things, it said that “for a … Read More
I did these three videos about the Salesforce master subscription agreement. With each video, you have the opportunity to ask LegalSifter for a giveaway. Enough time has passed that I can now make available to you, without even that slight obstacle, the two analyses I produced that we used as giveaways. Go here for a Word document containing (1) six … Read More
Yesterday I found this on EDGAR: It’s commonplace for contracts to contain instances of notice in writing or written notice and the like even though the notices provision says that all notices must be in writing. Whoever created the highlighted language was aware of that but decided that instead of, or in addition to, encouraging drafters to use search-and-replace to … Read More
You might well be aware of the dispute between AstraZeneca (AZ) and the European Commission (EU) over supplies of AZ’s COVID-19 vaccine. (Go here for an account from the Guardian.) The EU has made the contract available the public (here). AZ’s obligation to use “Best Reasonable Efforts” has attracted attention, but no one is suggesting we’re dealing with the fatuous … Read More
Today’s bit of advice: Don’t make some other contract part of your contract. That was prompted by this item by the Canadian law firm Bennett Jones. It involves a case before the British Columbia Supreme Court in which a general contractor wanted to refer the dispute to arbitration. The subcontract didn’t contain an arbitration provision, but the prime contract did. And … Read More
Recently Mark Anderson and I found ourselves back-to-back, brandishing longswords and together battling nonsense in skirmishes that broke out on different platforms (go here for an entry point). But it would be no fun if that were to prevent me from riffing on something Mark says. In one of his posts in that exchange (here), Mark says this: Resistance to … Read More
I’m in the habit of dividing the task of contract drafting into the what-to-say part and the how-to-say-it part. That’s a little too simple, as the how-to-say-it part can unexpectedly affect the what-to-say part if you’re not careful. But it’s also a little too simple because the how-to-say-it part itself is made up of two parts. There’s command of the … Read More
Updated 11 May 2019: This discussion continued across various platforms. Mark Anderson did this post; that prompted this post by Tim Cummins; I responded to Tim’s post with this LinkedIn comment; that prompted a back and forth between Sally Hughes and Mark Anderson. Mark joined me in concluding that further discussion would be a waste of time, but not before … Read More
