A reader alerted me to a recent opinion of the High Court of Justice of England and Wales in Lehman Brothers International (Europe) v. ExxonMobil Financial Services BV, [2016] EWHC 2699 (Comm) (here). At issue was the meaning of the phrase close of business, as used in a notices provision in a contract. ExxonMobil submitted a notice to Lehman’s London offices at … Read More
ACC Europe is holding its 2017 annual meeting on 7–9 May in Cascais, Portugal. And I’ll be there, as I have a 1.5-hour “Drafting Clearer Contracts” spot on the programme for 8 May. I have in mind devoting my entire time to what I call “the categories of contract language,” which relates to how you use verb structures in contracts. I’m … Read More
Table 4 in MSCD lists a bunch of suboptimal ways of saying may. In the past three years I’ve identified others; see here and here. Today, I’m proud to offer you yet another: is allowed to and its variants! Here are three examples: … and in the absence of any such indication, the Holder shall be allowed to [read may] presume … Read More
The link toward the top right of this page hardly screams for attention, so allow me to mention that you can subscribe to my newsletter by submitting your email address on this page. What is my newsletter, you ask? It’s a once-or-twice-a-month email with a list of blog posts published since the previous newsletter, plus some random musings. You might … Read More
In my recent article on sources of uncertain meaning in contracts (here) I discuss “contract-reference ambiguity.” That involves fights over the meaning of hereunder, herein, and the like. So it’s appropriate that thanks to this post by Larry P. Schiffer on the Insurance and Reinsurance Disputes Blog (my thanks to @zhadu for the tip), we have word of another dispute … Read More
Here’s something I said in this 2015 post: Elegant variation—going out of your way to avoid using the same word or phrase twice—is never a good idea. It’s particularly unfortunate in contract drafting, in which tone plays no part. If you wish to convey the same meaning, use the same word. If you think you’re exploiting shades of meaning by using, … Read More
One company I know of has only a single procurement template that covers purchase of “all works, products, and services.” Another company has a different template (in both one-off and master versions) for purchase of each of the following: Professional services (in other words, consulting) Other services (such as catering and cleaning) Software (without related services) Software (with related services) … Read More
[Overhauled 8:40 p.m. EST on 12 November 2016, thanks to input from Neal Whitman on Twitter.] It’s time to pick over the carcass of the “Magic Circle” extract that I dissect in this post. Consider the following with respect to the word Closing in that extract and in my version of it: The original version: … under a new contract of … Read More
Consider the following sentence: The Equipment will comply with the Specifications. What category of contract language is it? According to my categories-of-contract-language analysis, use of will would make it language of policy with respect to a contingent future event. But language of policy is only for the ground rules of a contract—stuff that applies, or happens, automatically. California law governs … Read More
Yesterday, after a seminar for a group from one of the major US law firms, a partner mentioned to me that clients are increasingly asking that the law firm draft contracts more clearly. I didn’t get any details, but I suspect that clients make this request when the contracts being drafted are commercial contracts. For mergers-and-acquisitions and other bet-the-company work, … Read More
