I have a particular interest in the real-world implications of indifferent drafting, so I’ve been contemplating doing an occasional series on drafting screw-ups that make the news. I was prompted to inaugurate this series by Bryan Sims, who was kind enough to point out to me this article from today’s issue of the Canadian newspaper the Globe and Mail regarding … Read More
Drafters should be aware of laws that can trump provisions of a given contract. A good example of this is the way the U.S. Bankruptcy Code can render unenforceable contract provisions that restrict assignment of rights under a contract or give a party the right to terminate if the other party files for bankruptcy. To improve my own knowledge, I … Read More
The issues of word choice that I discuss in MSCD are ones that drafters are likely to encounter repeatedly. In your day-to-day drafting, you’ll probably come across many other, quirkier issues. Here’s one I encountered today. I’m currently revising a software license agreement. It includes, in the section dealing with what’s meant to happen when the license terminates, the following … Read More
In MSCD, at 12.20, I say “the need to distinguish between sections, subsections, and enumerated clauses and sub-clauses means that using columns is not an option.” We’ll, it’s time to rethink that. I’ve been experimenting with a two-column version of the MSCD format, and it isn’t half bad. Click here for a PDF of one-page examples of the same text … Read More
My previous post on the contract drafter as copyright violator sidestepped a very pertinent question—under U.S. law, who owns the copyright in a contract that a law firm drafts for its client? Law Firm or Lawyer? This question has two parts. First, as between a law firm and the lawyer who drafts the contract, who owns the copyright? The answer … Read More
When I redraft a contract, part of the task involves coming up with language that is equivalent to, but clearer and more efficient than, what’s already there—I rationalize verb use and defined terms, eliminate redundant synonyms, and so on. These kinds of changes are straightforward enough—it’s the structural changes that require more thought. But sometimes I’ll come across a phrase … Read More
Earlier this year I redrafted a complex commercial agreement and sent it off to the client. I received in response a comment that I hadn’t expected at all—that the readability score for my draft was rather low. This caused me to scratch my head—I’d never given a moment’s though to readability tests. So I did some rooting around online. (Here’s … Read More
In MSCD (13.37–38) I briefly discuss “rhetorical emphasis”—adding verbiage to a provision not to change its meaning but to make it more emphatic. I suggest in MSCD that as a general matter you’re best off dispensing with rhetorical emphasis—the function of drafting is to state rules rather than convince anyone of anything. Nevertheless, one or more parties might feel more … Read More
I’ve recently been thinking about the concept of “survival.” It crops up in contracts in three ways, and in each of those contexts it’s either unnecessary or inferior to an alternative approach. I discuss each of these three contexts below. Survival of Claims Sometimes an agreement will specify that any claims that arise before an agreement terminates will survive termination. … Read More
The box office is now open for the “Intensive Contract Drafting Workshop” that I’ll be conducting in Toronto on November 6–7, 2006, under the auspices of the Professional Development Program of York University’s Osgoode Hall Law School. For more information, go here. In particular, check out the brochure, a pdf of which is at the bottom of that page.
