One encounters the phrase has no authority to and shall not in the context of agency: The Contractor has no authority to, and shall not, act as agent for or on behalf of Client or represent or bind it in any manner. Consultant understands and recognizes that he is not an agent of the Company and has no authority to … Read More
Counterparts provisions are a mess. For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that. And whatever counterparts are, the issue … Read More
Yesterday I learned of an opinion—hot off the presses—of the Missouri Court of Appeals, Eastern District, Division One, by Judge Kelly C. Broniec. The case is Pelopidas, LLC v. Keller, No. ED 109395, 2021 WL 3501988 (Mo. Ct. App. 10 Aug. 2021) (PDF here). This opinion concerns Keller’s appeal of a lower court decision interpreting the following sentence from a … Read More
Thank you to the readers who told me about Omni MedSci v. Apple (Fed. Cir. 2 Aug. 2021) (PDF here). They heard about it from this post on Patently-O. And in this post on IP Draughts, Mark Anderson expresses interest in having me comment on this case. Who am I to disappoint Mark? I’ll leave you to read those posts … Read More
Wearing my LegalSifter hat, today I researched how contracts refer to inspection of goods. In doing so, I encountered the following in this Yara purchase order (selected at random): All Goods may be inspected by the Purchaser within a reasonable time after delivery to the location required by the Purchaser. If on inspection, any Goods are found to be unsatisfactory, … Read More
I’ve mostly given up policing what passes for the marketplace of ideas—it’s too chaotic. But occasionally the algorithm tells me I might as well say something about something. So now, I’ll offer my thoughts on this post, entitled Canceling the Word “Shall” in Leases, Contracts and Legal Forms, on the Holland & Knight Retail and Commercial Development and Leasing Blog. … Read More
The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts. … Read More
Thanks to a hot tip from Deep Throat Glenn West, I learned about the Fifth Circuit’s opinion from earlier this year in Landmark American Insurance Co. V. Lonergan Law Firm, PLLC (here). An insurance company claimed that appellant Lonergan, a lawyer subject to a malpractice claim, had failed to “report” the claim as she was obligated to under her insurance … Read More
Dale Carnegie, an early-twentieth-century U.S. writer and lecturer on self-improvement, famously said, “Tell the audience what you’re going to say, say it; then tell them what you’ve said.” Whatever the merits of that gem, it doesn’t apply to contracts. In particular, don’t say what you’re going to say, as in this example: This agreement states the terms under which the … Read More
Late last year I did my first post on dual verb structures. I’ve done four of them, here, here, here, and here. Actually, make that six, because I now introduce to you the supremely effed up structure agrees to X and continue to X. I found only a few examples on EDGAR, but enough to confirm to my satisfaction that … Read More
