[Update: For my more recent take on this issue, see this 2012 post.] At a seminar I gave last week, I suggested that hold harmless and indemnify are essentially synonyms. Some participants were skeptical, so I thought I’d better research the issue. Black’s Law Dictionary supports my view. It defines hold harmless as follows: “To absolve (another party) from any … Read More
Last week I received an analysis of the 2006 amendments to the Delaware General Corporation Law. That reminded me of my one manuscript that never came close to becoming a published article—my critique of drafting usages in the DGCL. I wrote this manuscript about three years ago, when I was flailing around, seeking some way—any way—to turn my interest in … Read More
MSCD is a reference work rather than a textbook, so it doesn’t contain any teaching materials. That has probably prevented some teachers of contract drafting from using it as a course book. I’ve contemplated making available online a complete set of teaching materials, but that will have to wait. In the meantime, though, I can make available some items. Templates … Read More
Today I encountered another form of rhetorical emphasis to add to those noted in MSCD 13.37–38 and in my previous post on the subject. This is from a software license agreement: Licensor shall NOT indemnify, defend or hold Licensee harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Licensee in … Read More
Recently someone from the plain-English camp chided me for disagreeing with “the more progressive view” that one should avoid shall in contract drafting. Such potshots are, I suppose, inevitable if you publish enough, and they’re best ignored. But what good is a blog if one can’t occasionally use it to set matters straight? So here goes: My critic says, in … Read More
Last week I held an all-day seminar for a group of lawyers from a big company. A good time was had by all—they asked plenty of questions and apparently came away thinking that my approach had real merit. Given that I recently posted an item suggesting how law-firm associates might navigate obstacles to change in drafting, this seminar got me … Read More
Today, for the heck of it, I investigated the difference between guaranty and guarantee. Here’s what Bryan Garner says in A Dictionary of Modern Legal Usage (1995): The distinction in BrE once was that the former [guarantee] is the verb, the latter [guaranty] the noun. Yet guarantee is now commonly used as both n. & v.t. in both AmE and … Read More
The New York Law Journal recently published my article “Copyright and the Contract Drafter.” (Click here for the text of the article.) If the subject matter sounds familiar, that’s probably because this article consists of a mash-up of my two blog items on the subject. (Here and here.) This is the first time I’ve recycled something I’ve written for my … Read More
A couple of items caught my eye in the most recent issue of “Business Law Today.” One is an article by Susan J. Irion entitled “The New Classroom—Learning How to Draft Contracts in the Real World.” It discusses how law firms are using training in contract drafting to sharpen the skills of their business lawyers, and how law schools are … Read More
MSCD contains a section on overuse of initial capitals (13.28–34). Here’s what I say in MSCD 13.30 regarding titles: Drafters invariably use initial capitals when referring to officer titles (The certificate must be signed by the President of Acme), but authorities on general English usage recommend that one only do so when the title is followed by a name (President … Read More
