I recently saw the following in a book: The words “exclusion” and “disclaimer” are sometimes used interchangeably in warranty provisions, but an important legal distinction exists between them. The word “exclusion” or “excluded” used with respect to implied warranties means that those warranties implied by law are denied entry or admission into the agreement. In other words, if implied warranties … Read More
MSCD 17.16 deals with the phrase to the extent that. It makes the simple point that although to the extent that is appropriate when the degree to which a provision applies depends on some variable, drafters often use to the extent that when if would be more appropriate. Here are three examples: To the extent that [read If] an Award is intended … Read More
In yesterday’s post I wrote about how the Appellate Court of Illinois saw value in useless contract language, namely the traditional recital of consideration and “successors and assigns” provisions. But that post might prompt the following response: “The fact that the court saw value in the traditional recital of consideration and ‘successors and assigns’ provisions means that I should always include such … Read More
The fog generated by traditional contract language is thick enough that I find myself periodically revisiting issues that I’ve tackled previously. In that vein, I’d now like to consider an odd opinion that reader @21law told me about. It involves those two chestnuts, the traditional recital of consideration and “successors and assigns” provisions. The opinion in question is Urban Sites of Chicago, … Read More
Last week I mentioned in this post that the Delaware Supreme Court had cited A Manual of Style for Contract Drafting. Well, yesterday I noticed that in an opinion issued this week (here) the Eighth Circuit Court of Appeals had cited it too, the issue in this case being where to place the defined-term parenthetical when you create an integrated … Read More
Note use of the defined terms “X” and “Y” in the following, from the 2002 ISDA master agreement (discussed in this post): If a party is so required to deduct or withhold, then that party (“X”) will:— (1) promptly notify the other party (“Y”) of such requirement; (2) pay to the relevant authorities the full amount required to be deducted … Read More
Recently someone reminded me of the ISDA master agreement, the widely used form of master contract for over-the-counter derivatives transactions. It was last updated in 2002, and after I found a copy of the 2002 version online here, I had a look at it. My conclusion? The drafting is pretty ragged. No surprise there—I’ve looked at a few examples of … Read More
Regular readers will recall that syntactic ambiguity arises from uncertainty over what part of a sentence a given phrase modifies, or what part of a phrase a given word modifies. (If you want a bellyfull of syntactic ambiguity, search for “syntactic” using this blog’s search function.) It can sometimes seem as if syntactic ambiguity is a curiosity rather than something … Read More
In contracts, use of the word suffer comes in two flavors, silly and annoying. Silly First, silly—the intransitive use of suffer. When use to mean “to submit to or be forced to endure,” suffer is unobjectionable: I suffer from chronic insomnia. But it’s a bit much when used in contracts to mean “undergo, experience.” Oh, how Acme suffers! Usually the … Read More
The Chicago Manual of Style is an essential resource. It’s useful even for contract drafters (see this 2012 post). But I’ve long had a quibble about its guidance on one small issue regarding capitalization of words denoting political divisions. So today I exchanged emails with the online Chicago Style Q&A—itself a great resource. If I understood it correctly, the interpretation … Read More
