One of my favorite categories-of-contract-language topics is what I call “throat clearing.” That’s when you have an extraneous verb structure bolted to the front end of a sentence. I haven’t discussed throat-clearing much on this blog, so here’s the first section of MSCD‘s treatment of the subject: I mention this because of an exchange I had today with Matt Boyd … Read More
Use stipulates that in a contract? No thanks. Sometimes it’s used in language of declaration, instead of acknowledges: Borrower acknowledges and stipulates that the Loan Agreement and the other Loan Documents executed by Borrower are legal, valid and binding obligations of Borrower that are enforceable against Borrower in accordance with the terms thereof … . In addition, Executive stipulates acknowledges that … Read More
Consider the following: If the Borrower [be] [is] in default, … It is a condition to closing that the Buyer [have] [has] received an opinion of Acme’s counsel … . If Acme requires that Widgetco [pay] [pays] the purchase price in zlotys … The Company recommends that the Employee [retain] [retains] a lawyer … In each example, the first bracketed verb structure … Read More
Longtime readers will be aware that I’m particularly fond of finding effed-up ways of saying may. The fourth edition of MSCD lists in table 4 more than a dozen wordier and less-clear ways of saying Acme may, but this post from earlier this year confirmed that that list wasn’t exhaustive. And today, thanks to my work on the LegalSifter production … Read More
There’s a specialized kind of business contract that I’ll call “general terms”—a document created by a company or other organization to describe how its system operates. A set of general terms might describe how Acme sells widgets to many different buyers, or it might describe a network, with different kinds of entities playing different roles. A set of general terms … Read More
The case before us is Grumpy Cat Limited v. Grenade Beverage LLC, No. SACV152063DOCDFMX, 2018 WL 2448126 (C.D. Cal. May 31, 2018) (PDF here). It has something to tell us about how not to handle the distinction between conditions and obligations. A coffee shop signed a licensing agreement with the owners of Grumpy Cat. It used the Grumpy Cat name and image … Read More
From reader Zack Miller, of Sacramento, California: What are your thoughts on organizing credit agreements based on affirmative and negative covenants? (i.e., an article devoted to affirmative covenants and an article devoted to negative covenants). It makes sense to a lawyer, but is it really the best way to organize the various promises in a contract? Let’s start by considering … Read More
A year ago I published in this post the first draft of what I called a “quick reference” to the categories of contract language—a summary of the different categories, what they look like, what they’re used for, and where you can find more information. Go here for the version included in chapter 3 (The Categories of Contract Language) of the fourth … Read More
[Updated 11 Dec. 2021: For more on this topic, see this July 2018 post and this April 2020 post.] For a while now, I’ve asked myself what category of contract language to use when providing for one party to invoice the other. Here are the possibilities: Language of obligation: Widgetco shall invoice Acme monthly in arrears for purchases under this … Read More
I signalled in this post that my task of compiling guidelines to the building blocks of contract language is largely done. But it will never be over, and here’s an example of that. I recently encountered the formula this agreement allows. That sent me to EDGAR, where I found the following examples: As a general form of contract, this Agreement … Read More
