It’s time for that ever-popular game, Pick the Category of Contract Language! Bob, please tell our viewers what the choices are! Acme shall make all decisions relating to commercializing Licensed Products. [By using language of obligation, this expresses, appropriately, the idea that Widgetco wouldn’t want Acme to ignore what’s required to commercialize products. But it doesn’t express that Acme will be in … Read More
In this 2015 post I suggested that “instead of addressing each deal point in a separate sentence, you can often consolidate them.” When you do that, instead of using two main verbs to cover two deal points, you need only one main verb. But the example I used to illustrate this point ended up being hijacked by a substantive issue. … Read More
This post on ContractsProf Blog by Myanna Dellinger begins as follows: If a recording artist enters into a personal services agreement with a record company that, among other things, contains a promise that the artist will “look solely to [a corporate version of the music band] for the payment of my fees and/or royalties … and will not assert any … Read More
In MSCD 3.248, I recommend that you not use in a contract the terms of art condition precedent and condition subsequent: In a contract, use the term condition rather than condition precedent, which conveys the same meaning but adds an unnecessarily legalistic flavor. You should never need to use condition subsequent, meaning something that, if it occurs, would bring something else to an … Read More
Regular readers of this blog will know that I’m, um, fallible. A recent post offered a brilliant example of that. In this comment, reader John Dorsey mentioned that might conveys a lesser degree of possibility than does may. I expressed doubt about that. John responded by pointing to one of my blog posts. It quotes The Cambridge Grammar of the English Language offering exactly that … Read More
Last week Glenn West—this Glenn West—told me about Pivotal Payments Direct Corp. v. Planet Payment, Inc., No. CVN15C02059 EMD CCLD, 2015 WL 9595285 (Del. Super. Dec. 29, 2015) (PDF here). It involves representations. And warranties. He expected that I would freak. I can see him cackling and rubbing his hands together. Anyone who has read this blog for a while knows that those terms can get … Read More
Consider the following: The User may monitor its Service account via the “Acme Portal,” which is available at www.acme.com/accounts. It’s phrased as language of discretion, but I don’t think that makes sense. Acme isn’t saying, “We’re allowing you to access your account in this manner.” Instead, the idea is that anyone who has an account can access it in that manner. … Read More
Consider this (emphasis added), recovered from the EDGAR tar pits: If … , Ultimus may terminate this Agreement upon 60 days’ prior written notice [to the Trust]. Although that formulation is standard, I suggest it doesn’t make sense. In that case, termination wouldn’t happen when Ultimus—let’s take a moment to appreciate that name—notifies whomever it is. Instead, it would happen 60 … Read More
Well, I guess it’s language of performance’s turn in the spotlight, since this is my third post on the subject today. Below is a sentence from EDGAR that uses language of performance to appoint an agent. It’s following by a version using language of obligation. The Fund hereby appoints the Agent as its “Investor Servicing Agent” on the terms and … Read More
Consider use of the verb pay in the following extract from EDGAR: In consideration for the conveyance of the Assets to Buyer, Buyer hereby pays to Seller consideration (the “Purchase Price”) … You can’t pay someone just by saying so. As linguists would say, pay cannot be used performatively. In other words, pay doesn’t work in language of performance. Way more verbs … Read More
