Selected Provisions

To accompany my previous two posts (here and here) on issues relating to language used in governing-law provisions, here’s another: Do you say that the law in question governs the contract or, alternatively, that the contract is governed by the law in question? (This is a context where the passive voice is largely harmless.) Or do you refer to interpretation or … Read More

[Updated 16 October 2021: In this 2019 post I consider a law review article that discusses this issue and reaches broadly the same conclusion I do.] [Updated 13 July 2015: In my original post, I proposed not bothering to say in a governing-law provision that the court is to consider just the substantive law of the jurisdiction in question, instead of using … Read More

Consider these two alternatives: The laws of the State of Ohio govern … Ohio law governs … Any reason not to opt for the second alternative? It’s simpler, in that (1) Ohio acts as an adjective instead of forming part of a prepositional phrase and (2) it dispenses with State of. How about saying New York law governs? Could anyone plausibly … Read More

[This post was originally published May 4, 2013. I’m republishing it because a client, of all people, mentioned it to me—I had completely forgotten about it. On revisiting the original post, I decided that it was worth upgrading my new language from thought piece to something I use in my contracts. So I revisited Vinny Martorana’s analysis from two years … Read More

You might recall that one of the rationales for use of the phrase represents and warrants is that it allows you to specify what remedies are available, namely an action under the contract for breach of warranty, a tort action for misrepresentation, or both. In an as-yet-unpublished article, I demonstrate that using represents or warrants or both doesn’t make sense. I go on to … Read More

You know 10b-5 representations, right? (Because 10b-5 representation is a term of art, I’ll let slide use of the word representation.) Here’s one from an underwriting agreement, with the relevant language highlighted: The audiovisual presentation made available to the public by the Company at [URL] is a “bona fide electronic roadshow” for purposes of Rule 433(d)(8)(ii) of the 1933 Act, … Read More

Generally, English contracts refer to endeavours rather than efforts. I’ve long waged a guerilla campaign against the conventional wisdom that different endeavours standards convey different meanings (for example, see this 2012 post), and I’ll continue to do so, but that’s not today’s topic. Instead, it’s something even more annoying: I’d like now to suggest that English drafters stop using the word endeavours in contracts … Read More

Occasionally I offer up an inquiry from a reader and step aside. This is one of those occasions. Blake Reagan is a lawyer who works as a contract administrator for The University of Tennessee. I got to meet him at my recent “Drafting Clearer Contracts” seminar in Los Angeles. He’s a thoughtful and no-nonsense guy, so I paid attention when he … Read More

MSCD 13.105 deals with provisions that exclude certain types of damages. Here’s an example: Neither party will be responsible or held liable for any consequential, special, or incidental losses or damages. Such provisions are often found in sections with the heading “Limitation of Liability.” Seeing as I’m not a fan of the word limitation (see this post), I’m experimenting with … Read More