Adams on Contract Drafting

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By: Adams Contacts Consulting LLC

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Ken Adams

Latest from Adams on Contract Drafting

I’m still in the weeds on efforts, so please indulge me. Consider the following (emphasis added): In UBH (Mechanical Services) Ltd v. Standard Life Assurance Co. T.L.R., 13 Nov. 1986 (Q.B.)., the court said that “the phrase ‘all reasonable endeavours’ is probably a middle position somewhere between the other two, implying something more than reasonable endeavours but less than best endeavours.” In Rhodia Int’l Holdings Ltd v. Huntsman Int’l LLC [2007] EWHC 292 (Comm), the…
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On Monday, 27 May 2019, and Tuesday, 28 May 2019, I’ll be back in Geneva, Switzerland, to give “Drafting Clearer Contracts” seminars. As usual, my host will be the Geneva office of the global law firm Orrick. The Geneva seminars are always fun: beautiful premises, a small group (no more than 10 people), a particularly civilized lunch …. I hope to see some of you there. For full details and registration, go here. (I snagged…
A tipster told me about this article in the Economist. It concerns arbitration of a dispute over credit-default-swaps documentation. I’m not clear on the details, but here’s the gist of it: A contract used the defined term “Obligations” to mean an entity’s bonds. But in one crucial provision, the contract used the word “obligations,” without the initial capital. The arbitration panel concluded that it referred not to the bonds but to any obligations, for example…
CONTRACT-DRAFTING NOIR (Episode 338) Man sitting in a nondescript motel room at night. Bright lamp illuminates him but leaves his face in shadow, as does his fedora. His voice is as world-weary as his slouch. It’s real simple, see: Use the passive voice, drop the actor, bad stuff happens. Today’s cautionary tale comes from another tipster in the contracts deep state. The opinion is ASR 2620-2630 Fountainview, LP v. ASR 2620-2630 Fountainview GP, LLC, No. 14-17-00271-CV,…
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OK, kids, this is my most novel categories-of-contract-language post in a while. Let’s start with hereby. Here’s what MSCD ¶ 3.35 says: One helpful element of language of performance is hereby, which signals that the act described is being accomplished by the speech act itself. You could omit hereby, as in [1-1a], but this use of hereby is consistent with standard English. If you omit hereby from Doe hereby purchases the Shares, it would be…
On 27 and 28 May 2019 (Monday and Tuesday) I’ll be doing “Drafting Clearer Contract” seminars in Geneva, Switzerland, at the offices of the law firm Orrick. Details to come next week. I know this is short notice, so I wanted to get the word out. I hope to see some of you there. I’ll soon be announcing other dates in Mumbai, Kuala Lumpur, Singapore, Hong Kong, Dubai, London, Tokyo, and Seoul. Oof!…
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You might recall this post from last October, when I managed to come up with a contract extract showing how using the dreaded defined term this Agreement might help avoid confusion, assuming you’re really, really incompetent. Well, thanks to an informant buried in the contracts deep state, I now bring you something comparable, the image at the top of this post. Here’s the relevant bit: Unless the context otherwise requires, any other document or agreement…
A few months ago I encountered what was, at least for me, a new defense of dysfunctional contract language. When I pressed a few people to justify their support for a traditional usage, they responded that because plenty of people share their view, it must be correct. That relies on the logical fallacy argumentum ad populum, also known as “appeal to the masses” and various other names. In my mind, I had tagged that…
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One of my favorite categories-of-contract-language topics is what I call “throat clearing.” That’s when you have an extraneous verb structure bolted to the front end of a sentence. I haven’t discussed throat-clearing much on this blog, so here’s the first section of MSCD‘s treatment of the subject: I mention this because of an exchange I had today with Matt Boyd on the LinkedIn group A Manual of Style for Contract Drafting. Here’s the pertinent…