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
I wrote about intending to be legally bound in this 2012 post. Yep, it’s pointless, although note the bizarro Pennsylvania-law angle. It’s in fact Pennsylvania that has me revisiting intending to be legally bound. Reader Ben King told me about this post on the blog The Employer Handbook. It recounts how the Pennsylvania Supreme Court decided that use of the phrase intending … Read More
The July–August 2015 issue of The Trademark Reporter contains my article, uh, commentary entitled Inures to the Benefit and Trademark Licensing. (Yeah, the no-italics part is a little awkward when the title is part of a sentence.) Now that a decent interlude has passed ,I can make it available to you, dear reader. Go here for a PDF copy. As I say in … Read More
Is absence of knowledge the same thing as knowledge of absence? Consider the following EDGARlicious example, followed by my variation: … the Company is unaware of any facts that would form a reasonable basis for any such claim. … to the Company’s knowledge, no facts exist that would form a reasonable basis for any such claim. And these alternatives: … Borrower is … Read More
In stating deadlines, one can use a vague standard backed up by a precise standard: Acme shall promptly, and in any event no later than 30 days after it learns of that breach, notify Widgetco of … Well, thanks to a tip from a participant at a recent in-house “Drafting Clearer Contracts” seminar I did in Palo Alto, I learned that some drafters … Read More
In this recent post I wrote about a Bryan Garner tweet on the subject of including but not limited to. Shortly after, Garner posted “LawProse Lesson #226” on the same subject. Since his post offers more detail than did his tweet, I thought I should check it out, but I found that it reflects his unhelpful approach to contract language. Let me … Read More
[Update: See also this follow-up blog post dated 14 September 2015.] Thanks to @traduccionjurid, yesterday I learned of the following tweet by Bryan Garner: Yes. Every contract should define "including" as meaning "including but not limited to." Then never use longer phr. https://t.co/Oyu44bcs8j — Bryan A. Garner (@BryanAGarner) August 20, 2015 Garner is in a class of his own as … Read More
I think it’s time I said something about right, title, and interest, no? You just know that right, title, and interest is a bit of inflated legal phrasing that serves only to make legal prose suitably sonorous. That the three elements are invariably kept in the same order is one sign that their function is incantatory and not substantive. But let’s look more … Read More
Recently I expressed to a group of patent lawyers my reluctance to use sole and exclusive in granting language to indicate that the licensor retains or doesn’t retain, respectively, the right to use the intellectual property. But on revisiting MSCD 13.606–10 and this 2012 post, I realized that I haven’t yet offered suitable alternatives. So here goes: In contracts on EDGAR, … Read More
To be consistent in your contract usages, you have to make decisions big and small. Here’s a small one: which to use, no later than or not later than? Behold what a Merriam-Webster “Ask the Editor” item (here) says: [T]here are differences in the way these two expressions are used. No later than is used more often than not later than, … Read More
