Categories of Contract Language

For 15 years I’ve been haranguing people about the has a duty test. I can be relied on to ask a given group, way too many times, What is the first diagnostic test? In my dreams, those in attendance respond in unison, boot-camp style: The has a duty test! Allow me to explain. The foundation of controlled drafting is how … Read More

Today’s I offer you another interesting contracts verb structure, hereby instructs. Here are some examples from EDGAR: The Employee hereby instructs the Company to transfer to such Managers Insurance and/or Pension Plan the amount of Employee ’s and the Company’s contribution from the Monthly Salary, as detailed in Annex A. The Collateral Manager hereby instructs the Collection Account Bank, on … Read More

The pandemic has aggravated my tendency to lurk on EDGAR, the U.S. Securities and Exchange Commission’s database where public companies file their “material” contracts. Now I dream up the weirdest things I can think of, then I look for them on EDGAR. “Throat-clearing” is when a redundant verb structure is tacked on to the front of a provision. Who can … Read More

I’ve previously touched on “future facts”—statements regarding circumstances in the future—but I haven’t addressed the topic head-on. I fix that with this post. The Conventional Wisdom It’s easy to find future facts in contracts. What the ABA Model Stock Purchase Agreement says about future facts sums up the conventional wisdom: “Representations are statements of past or existing facts and warranties … Read More

Check out the highlighted sentences: Section 12.1 says how Myovant is required to pay invoices. Section 11.2 says Myovant is required to pay a given invoice in accordance with 12.1. In other words, section 11.2 imposes an obligation to comply with an obligation. If it were somehow unclear whether section 12.1 applies to section 11.2, it would be prudent to … Read More

If you’re a regular reader of this blog, you might recall that I’ve done two posts about what category of contract language to use to express issuance of invoices. There’s this January 2018 post and this July 2018 post. Well, thanks to my work as an advisor for LegalSifter, which leads me down all sorts of byways, I can add … Read More

In my newfound zeal for dual verb structures, I’ve written about the following examples shall grant and hereby grants has granted and hereby grants be and hereby is Each of those examples features two inconsistent verb structures ostensibly working together. I now offer you two verb structures that say the same thing, with the second offered as an exception to … Read More

In the impeachment proceedings before the U.S. Senate yesterday, Chief Justice Roberts announced that Trump “be, and he is hereby, acquitted.” BREAKING: Chief Justice John Roberts: "It is therefore ordered and adjudged that the said Donald John Trump be, and he is hereby, acquitted of the charges in said articles." https://t.co/cKgbkhVYFL pic.twitter.com/CSkOR6tJzI — Evan McMurry (@evanmcmurry) February 5, 2020 Given … Read More

From this Reed & Smith analysis I learned of a dispute before the Delaware Chancery Court, Williams-Sonoma Stores, Inc. v. DDK/WE Hospitality Partners, LLC. It demonstrates that with contract verb structures, you can be right, but not right enough. I’ve thought long and hard about the issues underlying this dispute, so let me walk you through it. The deliberations in … Read More