If a contract says that you may do something, no purpose is served by saying you may exercise that discretion “freely”—nothing suggests that the discretion granted would otherwise be somehow restricted. Nevertheless, may freely or its passive counterpart, may be freely, occur in 292 “material contracts” filed on the SEC’s EDGAR system in the past year. That doesn’t equal an … Read More
In this comment to a recent post on this blog, Mark Anderson—he of IP Draughts—makes the following recommendation: Ken, in my view best practice is to put definitions in two columns [using a two-column table], with the defined word in the first column and the definition in the second column. This makes it easier to find and read the definition. … Read More
The 2011 annual meeting of the Association of Corporate Counsel is taking place in Denver on October 23–26. I spoke at the previous two annual meetings, and I would have liked to have attended this one. But it’s parents’ weekend at my daughter’s new school, and on October 25 I’m giving a “Drafting Clearer Contracts” seminar in Washington, D.C. So no ACC … Read More
Joan Heminway, professor at the University of Tennessee College of Law, sent the following inquiry to me and one of her colleagues: In commenting on student work, I have noticed over the years a decrease in student use of quotation marks around defined terms, especially when defined in inside parentheses. I note that while investment bankers, e.g., do not typically … Read More
I understand that a law firm would regard it as a good thing if its clients, in between big deals, were to have occasion to get in touch with it every so often. That sort of low-threshold contact would reduce the odds of clients forgetting about the law firm and the stellar service it has provided. That in turn would … Read More
A participant at today’s “Drafting Clearer Contracts” seminar in Minneapolis mentioned how she includes in her drafts a footnote alerting the reader that it was drafted so as to comply with recommendations contained in A Manual of Style for Contract Drafting. She does so with the aim of dissuading people from asking her to restore suboptimal usages of the sort … Read More
At today’s Minneapolis “Drafting Clearer Contracts” seminar, one of the participants mentioned how his company has licensed ContractExpress—the technology that powers Koncision—to automate their confidentiality agreements. That prompted the following thought: Anyone who wants to use ContractExpress to automate their drafting of confidentiality agreements would be missing out if they don’t explore licensing Koncision’s confidentiality-agreement template too. You’d be getting … Read More
Use of there is or there are in a sentence is not only more often than not a sign of clutter: it also allows drafters to play, presumably unwittingly, the game of hide-the-actor. Consider the hot-off-the-presses case of Florida Department of Highway Safety and Motor Vehicles v. National Safety Commission, Inc., which a reader just told me about (PDF copy … Read More
A reader told me about the Ohio Supreme Court’s June 2011 decision in Sunoco, Inc. (R&M) v. Toledo Edison Co. (go here for a PDF copy). The issue was whether Sunoco could use a most-favored-nation provision in its contract with the Toledo Edison Company to require that Toledo Edison extend the term of the contract to match the term of … Read More
When in a contract you want to specify a fee to be paid, it’s redundant to use the phrase flat fee or fixed fee: The Bank agrees to pay RP Financial a fixed fee of $37,500 for preparation and delivery of the original appraisal report, plus reimbursable expenses. During the Term, DigitalGlobe shall pay Consultant a fixed fee of $10,000 per month for up … Read More
