Check out the following, which is the text of an entire section: See the highlighted sentence at the end? This is the first time, about 30 years into the game, that I’ve contemplated this way of creating a defined term.
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M&A Drafting: Double Materiality in the Bringdown Condition Is a Nonissue
By Ken Adams
I’ll now revisit something I last wrote about in 2013: double materiality in the bringdown condition. (I see the term “double materiality” thrown around in other contexts, so I think it’s best to be specific.) The Theory Here’s a statement…
“Battle-Tested” Contracts?
By Ken Adams
Longtime readers will be aware that I roll my eyes at the notion of relying on contract language that has been “tested” by courts. As I say in a 2006 blog post, “Why rely on language that resulted in litigation?…
When “Greater or Lesser” Doesn’t Work
By Ken Adams
Here’s an instance of the phrase greater or lesser: Unobjectionable, right? Here’s another instance: Unobjectionable too, no? Here’s another example of the same sort: That’s unobjectionable too, right? Actually, the second and third examples don’t work. The first example refers…
Say Hi to “Ambiguity of the Specific Versus the General”
By Ken Adams
The post before this one—the one about a reference in an insurance policy to “insects, birds, rodents, or other animals” (here)—made me realize I have to restructure in one respect how A Manual of Style for Contract Drafting presents ambiguity.…
“Insects, Birds, Rodents, or Other Animals”: Ejusdem Generis Strikes Again
By Ken Adams
I noticed this story from Iowa local news channel KCRG: An eastern Iowa veterinary hospital is suing its insurer in a dispute over the definition of an “animal.” … The lawsuit alleges that about 8:15 a.m. on Nov. 7, 2024,…
When an Unaffiliated Entity Acts on a Party’s Behalf in a Contract
By Ken Adams
Consider the shall in this sentence from a public-company merger agreement: As soon as practicable after the First Effective Time, the Exchange Agent shall, on behalf of all such holders of fractional shares of Parent Common Stock, effect the sale…
“Reasonably Agree”
By Ken Adams
Let’s fill a gap in A Manual of Style for Contract Drafting! MSDC has something to say about mutually agree, and it has something to say generally about reasonably modifying a verb, but it doesn’t say anything about reasonably agree.…
Treating “This Agreement” as a Defined Term Is Silly
By Ken Adams
I’ve written about the defined term this Agreement more often than I might have expected. (See for example this 2018 blog post and this 2016 blog post.) Yet here I am writing about it again, because I’d like to have…
Replacing “Once” in Contracts: An Example of Sweating the Small Stuff
By Ken Adams
In this post, I explain why in contracts, instead of the conjunction once, I use if or I just delete once, depending on the context. I do that because when drafting a contract, you should aim to make all your…