Here’s an odd little usage: the date notified. I first saw it in section 1.1.3.2 of the FIDIC contract I discussed in this post (emphasis added): “Commencement Date” means the date notified under Sub-Clause 8.1. Here are some other examples from that den of iniquity, the SEC’s EDGAR system: Each Lender shall make available to the applicable Issuing Bank an … Read More
On Tweetdeck, I have a column for tweets that contain the words “contract” and “drafting.” From the tweets that show up there, every so often I learn about stuff that I might otherwise have missed. For example, today I saw the following: New Alert: First Circuit's lesson on necessity of precision in loan contract drafting http://t.co/OGhw94XOPB — Tim Durken (@TDurken) … Read More
I bring you two items of interest regarding recovery of attorneys’ fees. One is this post by Brian Rogers, aka @theContractsGuy. The message? If for purposes of a contract governed by Missouri law you want to recover attorneys’ fees, it’s not enough to say “all costs”—you have to mention attorneys’ fees too, presumably by saying “all costs, including attorneys’ fees.” … Read More
A modest suggestion: When you’re dealing with real estate, eliminated demised from your contracts. For purposes of real-estate contracts, demise means “to convey by will or lease.” There’s always a simpler word. The following example is from the contract providing for Jeff Bezos’s acquisition of the Washington Post (discussed in this post): The Seller shall lease to the Purchaser sufficient … Read More
I’ve had occasion to consider the dispute between Cooper Tyre and Apollo Tyres, as the Wall Street Journal asked me about the efforts language at issue. That’s something that Steven Davidoff considered in this recent item in the New York Times Dealbook: Section 6.3 of the acquisition agreement requires that Apollo “in the most expeditious manner possible” use its “reasonable … Read More
Hot on the heels of last month’s post about a case involving notwithstanding (here) comes another one, courtesy of Peter Mahler, in the form of this post on his New York Business Divorce blog. By my reckoning, two notwithstanding cases within a month of each other constitutes a bonanza. What makes the case Peter discusses particularly noteworthy is that it … Read More
Today I glanced at this Littler newsletter, which discusses a case involving a dispute over forum selection. But what caught my eye wasn’t the dispute itself. It was the language at issue: This Agreement is subject to the provisions of the Labor Law No. (58) for the year 1970 Gregorian and its amendments and the law on Social Solidarity No. … Read More
MSCD explains as follows how using the word notwithstanding in a contract can create problems: For one thing, notwithstanding operates remotely on the provisions it trumps; readers could accept at face value a given contract provision, unaware that it is undercut by a notwithstanding contained in a different provision. Furthermore, although a notwithstanding clause that refers to a particular section … Read More
The implications of using either or both of the phrases arising out of and relating to is a topic of perennial interest. (For example, see this post, this post, and this post.) So today an article in Corporate Counsel entitled 3 Pitfalls in Contractual Choice-of-Law Provisions (here) caught my eye. It’s by two partners and an associate at McDermott Will & … Read More
Last week I read an organization’s internal analysis of efforts provisions, based on a handful of articles on the subject. According to this analysis, those articles suggest that Delaware courts have held that best efforts represents a more exacting standard that does reasonable efforts. I wasn’t aware of that. MSCD chapter 8 contains what I like to think is the clearest and … Read More
