How did duly ever escape my attention? Last week Bradley Clark sent the following tweet my way: @KonciseD Only 11:12 CST & I've already run into these two: "duly appointed" and "duly approved." — Bradley B. Clark (@bradleybclark) September 19, 2012 I realized that Bradley was giving me way too much credit—I’d never written about duly. So here goes. According to … Read More
I received the following inquiry from reader Andrew Sinclair: I couldn’t find any posts on the topic of whether to use “control”, “prevail”, or “govern” to resolve conflicting terms. I had a partner in China ask to change to change “prevail” to “control” when negotiating a contract. That suggested to me that the partner thought there would have been some … Read More
The word consideration features prominently in the traditional recital of consideration. You know: “NOW THEREFORE, in consideration of the premises, …” blah blah blah. The traditional recital of consideration is of course pointless (I revisited it in this 2011 post), but that’s not what this post is about. Instead, reader Chris Lemens brought to my attention the phrase as consideration. … Read More
The English case Ener-G Holdings PLC v Philip Hormell (discussed in this post) also had to consider what it means to say that notice can be served by “delivering it personally.” In that context, “personally” could relate to the person doing the delivering. After all, one says, “I delivered it personally,” meaning that the speaker was the one who delivered the … Read More
Steven Sholk, that indefatigable source of leads, has told me about yet another opinion dealing with a dispute over termination versus expiration. That’s a topic I’ve written about in a few blog posts. In the case at issue, Hamden v. Total Car Franchising Corp., 7:12-CV-00003, 2012 WL 3255598 (W.D. Va. Aug. 7, 2012) (PDF copy here), the court held, among other … Read More
For the heck of it, let’s go back to basics. Generally, no purpose is served by stating, in the introductory clause or elsewhere, that the parties intend to be legally bound. The approach under U.S. law is summarized by section 21 of the Restatement (Second) of Contracts, which states that “Neither real nor apparent intention that a promise be legally … Read More
Yeah, yeah, attorn has an established legal meaning, although I’ve never had occasion to use it. From Garner’s Dictionary of Legal Usage, here’s the definition of the related noun: attornment has two analogous senses, the first relating to personal property and the second relating to land. It may mean either (1) “an act by a bailee in possession of goods … Read More
Consider the phrase reasonable wear and tear, as in “The Grantor shall maintain the Equipment in good working order, reasonable wear and tear excepted.” I know that reasonable wear and tear is standard, but it’s also a bit quaint: Wear is fine, but what’s with tear? Presumably the nifty rhyme has a lot to do with it. (Garner’s Dictionary of … Read More
What’s the difference between seller and vendor used as defined terms for party names? Here’s what Bryan Garner has to say in Garner’s Dictionary of Legal Usage: In specific contexts, however, a differentiation is emerging: in computer contracting, the practice is to use vendor rather than seller almost exclusively. The term vendor is used in two senses: (1) “any member … Read More
[Updated July 14, 2015: This topic is revisited in this 2015 post.] I wrote about the phrase sole and exclusive in this 2010 post on AdamsDrafting. Last April Mark Anderson wrote about it in this post on IP Draughts. At the risk of overkill, I’d now like to take another crack at the subject. “Sole” and “Exclusive” in Licensing In … Read More
