This post on LinkedIn by Michael Naughton serves as a reminder of the perils of the artisanal approach to contract drafting: if there are no rigorous standards, you’re free to constantly reinvent a defective wheel. So if it’s not artisanal, how should we characterize contract drafting? Here’s what I said in this 2104 post: “I suggest that it’s a craft—the … Read More
Recently I did this post prompted by an exchange with a reader. That exchange started with my reader asking this question: How do you stay on top of contract dispute cases that deal with imprecision of language, as you discuss on your website? Are there certain search terms you use in Westlaw? I have tried to search for cases, but … Read More
Today I noticed this tweet: VCs: "don't you dare send an NDA before meeting with us or you're a joke. ideas are worthless." Also VCs: "welcome to our office please use this nice iPad to sign a one-way NDA. our ideas are worth everything." pic.twitter.com/U8kxkTNcRM — Jonathon Barkl (@jonathonbarkl) January 29, 2020 As a fan of found contract text, I … Read More
Today @solirvine tweeted this in my direction: Related: in your extensive corpus, have you ever addressed the dynamic of “it's meaningless/unimportant, so just leave it in” versus “it's meaningless/unimportant, so let's take it out”? That’s a conversation I have at least once per transaction. — Sol Irvine (@solirvine) January 22, 2020 Absent other considerations, you take out that which is … Read More
While poking through the wreckage of Bryan Garner’s new book on contract drafting (see my review here), I found only one idea worth considering further, namely his recommendation regarding use of the section mark (§). Here’s what he says: We’re after efficient communication and error prevention. Thirty-three percent is slower, more cumbersome, and more prone to error than 33%. And … Read More
(This is an updated version of a post I did last year.) On 4 November I’ll be doing a day-long “Drafting Clearer Contracts” seminar in London for UCL Faculty of Laws. (For more information, go here.) I can think of eight reasons why you might want to attend: English contract drafting is dysfunctional. Generally, the prose of contracts leaves a … Read More
The title of this post sounds aspirational, rather like “A chicken in every pot.” But it’s not: instead, it’s how I conduct my “Drafting Clearer Contracts” seminars. I suppose at some seminars the speaker introduces you to their approach to something, with the seminar acting as a teaser. If you like the seminar, you have the option of investing in … Read More
Ah, you never know what you’re going to dredge up from the murky depths of Edgar! As regular readers will know, two recommendations I make in MSCD tend to cause brains to implode. One of those recommendations is that you dispense with using this agreement as a defined term. (The other recommendation is that you use states instead of represents and … Read More
Friends, today’s word is abrogate. If you use it in contracts, you need to get over yourself. Here’s how Black’s Law Dictionary defines it: abrogate (ab-rə-gayt) vb. (16c) To abolish (a law or custom) by formal or authoritative action; to annul or repeal. I rummaged around on Edgar to see what use people have had for abrogate, and I quickly noticed that once … Read More
In a basic “further assurances” provision, the parties agree to take care of any paperwork required to complete transaction formalities that haven’t been completed by the time of the closing. The aim is primarily to prevent either party from refusing to sign a document required to transfer assets. That should be unobjectionable, but I see some problems. First, “further assurances” … Read More
