I recommend saying Acme hereby grants the License to Smith, not Acme grants the License to Smith, with hereby omitted. Why? I’ll let The Cambridge Grammar of the English Language 860 n.3 (2002) explain for me: Clauses like I promise to return the key and I order you to leave are ambiguous, having also less salient interpretations in which they are statements … Read More
Reader A. Wright Burke has a nifty turn of phrase. Who can forget his nitcaps™. (“Initial capitals,” guys!) He recently came up with “naked facts.” Nice phrase. But I suggest that the concept it stands for doesn’t work. It’s instructive to consider why that’s the case. A naked fact is a statement of fact that isn’t preceded by a reference … Read More
You might recall that last year in this post I suggested the possibility of using “language of concurrence” if when someone sells something the purchase price is being paid at the time the contract is being signed. Last month I revisited that idea in this post. Well, I just realized there’s a traditional-language equivalent. Here’s an example: In consideration of ten dollars in hand … Read More
Updated October 11, 2015: Gee, I go away for a couple of days and commenters have a party! Here’s where I end up on this: First, hereby purchases and hereby sells are both valid to effect sale of whatever it is. I checked with Chris Kunz, and she confirmed as much. Second, despite suggestions to the contrary in the comments, it doesn’t … Read More
[Updated October 5, 2015: This post has been quarantined, and at some point I’ll quietly take it off life support. My revised version of the sample language got caught up in the issue discussed in this post: purchase is one thing, payment of the purchase price is another, so it doesn’t make sense to say that you buy something by paying … Read More
I recently saw this tweet by @CherylStephens: Contract says "Company has the right to request" when it means "can require." Right? Otherwise, just says they can ask? — CherylStephens.com (@CherylStephens) September 12, 2015 Ah, I said to myself, may request! Categories-of-contract-language issue 24,773! So I popped some penicillin and waded into EDGAR. Here’s a taxonomy of may request. Restrictive Relative Clause … Read More
For some kinds of contracts—mostly where there’s a disparity of bargaining power—some companies prefer using the first person (we, us, our) to refer to themselves and the second person (you, your) to refer to the other guy. Going that route has implications. For one thing, it wouldn’t make sense to use shall in such contracts. I wrote about that way … Read More
Table 2 in MSDC chapter 3 displays an assortment of suboptimal ways to impose an obligation on a contract party that’s the subject of a sentence. I use shall, of course (as I explain in this article); the suboptimal variants include agrees to, undertakes to, and commits to. Well, I’m happy to announce that I’ve discovered another suboptimal variant, is bound to (and … Read More
I’ve written plenty about at its sole discretion over the years. The full discussion is at MSCD 3.168–96, but there’s also this 2011 article about a relevant California court opinion. Well, today I encountered the following in a contract: If the Company in its sole discretion agrees to such change, the Company shall … Previously I’ve written about at its sole … Read More
OK, so we now all know that the phrase represents and warrants is pointless and confusing. My recent article on the subject (here) establishes as much in excruciating detail. But I don’t recommend that you ask that the lawyers on the other side of a deal replace represents and warrants with states. The benefit of doing so would be more than outweighed … Read More
