I’ve been reading Matthew Butterick’s Typography for Lawyers. It has caused me to revisit some issues. Here’s one: In samples in MSCD, the introductory clause, the recitals, the lead-in, the concluding clause, and autonomous definitions all use first-line indenting. I also use space between those paragraphs. Here’s what Typography for Lawyers has to say: A first-line indent is the most … Read More
How did duly ever escape my attention? Last week Bradley Clark sent the following tweet my way: @KonciseD Only 11:12 CST & I've already run into these two: "duly appointed" and "duly approved." — Bradley B. Clark (@bradleybclark) September 19, 2012 I realized that Bradley was giving me way too much credit—I’d never written about duly. So here goes. According to … Read More
I received the following inquiry from reader Andrew Sinclair: I couldn’t find any posts on the topic of whether to use “control”, “prevail”, or “govern” to resolve conflicting terms. I had a partner in China ask to change to change “prevail” to “control” when negotiating a contract. That suggested to me that the partner thought there would have been some … Read More
Yesterday I spotted the following tweet that @mcfandrew86, research development officer at Queensland University of Technology, Australia, apparently posted while at a contracts workshop: Basic rule of contract drafting? Don't use a USA contract as an example! Oh, and don't copy and paste in haste! #arms2012 — McFandrew (@mcfandrew86) September 19, 2012 Then there was this last week from @IPDraughts, … Read More
Here’s something that I suppose I should have mentioned years ago: to the list of suboptimal ways of imposing an obligation on the subject of the sentence, add promises to. For purposes of language of prohibition, the counterpart is promises not to. Use instead shall and shall not. Although promises to isn’t as conducive to confusion as agrees that, in … Read More
The word consideration features prominently in the traditional recital of consideration. You know: “NOW THEREFORE, in consideration of the premises, …” blah blah blah. The traditional recital of consideration is of course pointless (I revisited it in this 2011 post), but that’s not what this post is about. Instead, reader Chris Lemens brought to my attention the phrase as consideration. … Read More
Here’s my attempt at articulating, for the first time, the interplay of vagueness and imprecision. Excuse the lack of hyperlinks to analysis of the different terms I mention. Vagueness is a function of uncertain borders. It’s nice to be precise, but in some contexts you have to resort to vagueness by using, for example, the term reasonable efforts. But the … Read More
This post includes a list of ways in which indemnification can benefit a party bringing a claim. Here, in a spirit of completeness, is another one, suggested by a reader: Ensure Losses Aren’t Covered by a Provision Excluding Certain Types of Damages. Asking to be indemnified for losses incurred due to nonparty claims constitutes a claim under the contract. That would … Read More
Last month I took the liberty of including in this post a reader’s appreciation of the value of what I do. The forces of inertia are such that, what the heck, I’m going to do it again. A couple of days ago received the following from Ajay Krishnan, a lawyer based in Toronto: Dear Ken, You don’t know me, but … Read More
In this recent post I considered whether there’s any point in providing in a contract a definition of the term gross negligence. And in this other recent post I considered the adjective wanton. But both posts were inadequate, so I offer instead in this post a broader look at use of the terms negligence and gross negligence in contracts. It … Read More
