Can’t we do better than et seq.? Here’s the Black’s Law Dictionary definition: et seq. (et sek) abbr [Latin et sequens “and the following one,” et sequentes (masc.) “and the following ones,” or et sequentia (neuter) “and the following ones”] (18c) And those (pages or sections) that follow <11 USCA §§ 101 et seq.>. And here’s an example from EDGAR: … Read More
The phrase among other things is usually benign, because usually it’s used to refer to something treated fully elsewhere—for example, in the same contract (the first example below) or in another contract (the example under it). Attached as Appendix A is an amended and restated Schedule B to the Subadvisory Agreement setting forth, among other things, the fee that the … Read More
I’m in the process of revisiting the concept of “misapplied” terms of art, which I discuss in MSCD chapter 1. The idea is that it doesn’t make sense to use doctrinal terms of art in contracts if simpler terminology is available. Today’s candidate for a misapplied term of art is the noun subrogation (and the verb subrogate). Here’s the Black’s Law … Read More
Today I revisited my 2016 post on reasonable and hypallage (here). In trying to make sense of that post, I revisited hypallage generally. Be warned: that’s what this post is about. In the Ben Zimmer item (here) I link to in the previous post, here’s how Ben describes hypallage: Hypallage (pronounced hy-PAL-uh-jee, rhyming with analogy) is a literary device that … Read More
Yesterday I saw this article on JDSupra. It’s entitled Merger and Purchase Agreements Governed by Maryland Law: “Best Efforts”, and it’s by Scott Wilson of the law firm Miles & Stockbridge. Consider the following extract: The most commonly utilized terms are “best efforts,” “reasonable best efforts” and “commercially reasonable efforts.” Practitioners understand these terms on a sliding scale with “best efforts” … Read More
Today I encountered use of ought in the Uniform Commercial Code, so that sent me scurrying to EDGAR, where I found 143 contracts filed in the past year that use ought. Garner’s Modern English Usage says the following about ought: Ought should be reserved for expressions of necessity, duty, or obligation; should, the slightly weaker but more usual word, especially … Read More
[Updated 13 June 2017: Prompted by this more recent post, I’ve had a change of heart. I think this should be language of declaration: The parties acknowledge that this agreement does not address the law that governs disputes arising out of this agreement or the subject matter of this agreement. Why? Because it doesn’t really make sense to state as a … Read More
Behold the following extracts from the outhouse EDGAR, each using the word joinder: … the Company shall cause each such Permitted Subsidiary to become party to the Guaranty by executing a joinder to the Guaranty reasonably satisfactory in form and substance to the Required Holders. On November 11, 2016, the Board authorized this Agreement , contingent upon its execution and … Read More
[Overhauled 8:40 p.m. EST on 12 November 2016, thanks to input from Neal Whitman on Twitter.] It’s time to pick over the carcass of the “Magic Circle” extract that I dissect in this post. Consider the following with respect to the word Closing in that extract and in my version of it: The original version: … under a new contract of … Read More
In the course of discussions in London, it became clear to me that I have few supporters in suggesting that drawing a distinction between endeavours standards—the US equivalent is efforts—is an invitation to confusion. The prevailing view is that of course best endeavours imposes a more exacting standard than does reasonable endeavours. I’m happily sticking to my guns, for two reasons. … Read More
