Here’s what MSCD 3.244–45 has to say about “passive-type policies”: Some policies are characterized by adjectives such as exercisable and payable and have a structure that’s analogous to the passive voice. This manual refers to such policies as “passive-type policies.” Passive-type policies have two shortcomings. First, as with passive verb phrases (see 3.11), the agent can be expressed by a by-agent, but in contracts … Read More
Acme has an inventory of widgets. For whatever reason, the following is in a contract between Acme and WidgetCo: It is a condition to Acme’s conducting a public sale of widgets that Acme notify WidgetCo in advance of the date and location of that sale. Now compare that to the following: To dispute a DynaCo invoice, XYZ must submit a … Read More
In contracts, language of declaration is used by parties to declare facts. And as I say in MSCD 3.270, “Language of declaration allows parties not simply to assert facts but to be seen to be asserting them—without the verb, it wouldn’t be clear who is making the assertion.” Language of declaration comes in two flavors, depending on whether the fact … Read More
One of the categories of contract language is language of recommendation. It’s discussed at MSCD 3.332, and I introduced the idea in this 2011 post. Obviously enough, you use it when one party is recommending something to another party: The Company recommends that the Participant consult with his or her personal advisor …. I’ve always though that language of recommendation … Read More
These days I mostly get my inspiration from contracts and from caselaw, but books by others can also be a source of useful ideas. Seeing as I’m in Australia, I just purchased on Kindle the third edition of Modern Legal Drafting: A Guide to Using Clearer Language, by Peter Butt, emeritus professor at the University of Sydney and the doyen of … Read More
It’s routine for one post to beget another. My post on shall not negligently (here) was prompted by the following contract language: Company will not, and will not knowingly or negligently allow any third party to [do various things]. In a comment, David Ziff considered the implications of using just shall not allow, with negligently omitted. I agree with David. On … Read More
While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following: Company will not, and will not knowingly or negligently allow any third party to [do various things]. But does it make sense to impose an obligation on someone not to act negligently? Is that equivalent to imposing an obligation … Read More
If I argue that a particular contract usage can create confusion, it’s nice when I can point to a court opinion that inadvertently confirms as much. So I was delighted when cousin Joshua Stein sent my way one such opinion, 383 Madison LLC v. The Bear Stearns Companies, Inc., a 2008 New York Supreme Court slip opinion (here). It involves … Read More
[Update: For my definitive take on this subject, see my article Eliminating the Phrase Represents and Warrants from Contracts, 16 Tennessee Journal of Business Law 203 (2015).] Yes, I know that I’m getting tiresome, they way I harp on about represents and warrants, like a dog worrying a bone. But I have a new element to add to my analysis. At … Read More
Today @KentPitman shared the following thought with me: I used to do programming language standardization both nationally and internationally. I noticed some German speakers had a particular attitude (I’d almost say phobia) around the use of the word “will” as a compulsion. They never explained it and seemed to think it was obvious, so I’m not certain, but I eventually came … Read More
