Corporate & Securities Law

Response to a Young Traditionalist

Posted on July 01, 2009
Hot on the heels of Venkat Balasubramani’s Twitter update reminding me of all those I have yet to convince came a message from one of the unconvinced. The individual in question had watched my first webcast and had some questions that we discussed by email...

Contract Drafting as a “Niche” Subject

Posted on July 01, 2009
Twitter has become a low-key part of my public profile (my Twitter ID is @AdamsDrafting). Links to my new blog posts go out automatically on Twitter; I indulge in the occasional bit of flagrant self-promotion, these days mostly about my webcasts; and I sporadically offer up any halfway rational and maybe-interesting thought that otherwise doesn’t [...

Response to a Young Traditionalist

Posted on July 01, 2009
Hot on the heels of Venkat Balasubramani’s Twitter update reminding me of all those I have yet to convince came a message from one of the unconvinced. The individual in question had watched my first webcast and had some questions that we discussed by email...

Contract Drafting as a ?Niche? Subject

Posted on July 01, 2009
Twitter has become a low-key part of my public profile (my Twitter ID is @AdamsDrafting). Links to my new blog posts go out automatically on Twitter; I indulge in the occasional bit of flagrant self-promotion, these days mostly about my webcasts; and I sporadically offer up any halfway rational and maybe-interesting thought that otherwise doesn’t [...

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Training Your “Apprentices” in Contract Drafting

Posted on June 30, 2009
You can find plenty of discussion online, at Above the Law and elsewhere, of the new “apprenticeship” model of first-year-associatedom at a handful of law firms. I suggest that such firms have a choice: either they’re going to give their apprentices the same old training, just more of it, or they’re going to use their new [...

“Because” and Causation Issues in Contracts

Posted on June 30, 2009
Thanks to reader Steven Sholk, I learned that the U.S. Supreme Court recently considered the “ordinary meaning” of the words because of. Here’s how the CCH Workday blog described the issue: Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute's requirement that an adverse [...

?Because? and Causation Issues in Contracts

Posted on June 30, 2009
Thanks to reader Steven Sholk, I learned that the U.S. Supreme Court recently considered the “ordinary meaning” of the words because of. Here’s how the CCH Workday blog described the issue: Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute?s requirement that an adverse [...

Training Your ?Apprentices? in Contract Drafting

Posted on June 29, 2009
You can find plenty of discussion online, at Above the Law and elsewhere, of the new “apprenticeship” model of first-year-associatedom at a handful of law firms. I suggest that such firms have a choice: either they’re going to give their apprentices the same old training, just more of it, or they’re going to use their new [...

“Forthwith”-A Quaint Archaism

Posted on June 28, 2009
Methinks forthwith has as a fusty, moldy air about it. I wasn’t surprised to see it included, along with the likes of hither and mayhap, in this list of quaintly archaic words. But lo and behold, forthwith was used in 502 contracts filed in the past month on the SEC’s EDGAR system, as compared with 1704 [...

?Forthwith??A Quaint Archaism

Posted on June 28, 2009
Methinks forthwith has as a fusty, moldy air about it. I wasn’t surprised to see it included, along with the likes of hither and mayhap, in this list of quaintly archaic words. But lo and behold, forthwith was used in 502 contracts filed in the past month on the SEC’s EDGAR system, as compared with 1704 [...

A Contract-Language French-English “False Friend”

Posted on June 24, 2009
In the course of considering, for purposes of today’s post on time is of the essence, how contracts are drafted in Quebec, I came across an oddity of the sort that I wouldn’t have expected to encounter in contract language-an instance of “false friends,” in other words pairs of words in two different languages that [...

Enforceability of “Time Is of the Essence” Provisions in Civil-Law Jurisdictions

Posted on June 24, 2009
At the 2008 ABA annual meeting I appeared on a panel with Kevin Kyte, partner at the Montreal office of Stikeman Elliott. Kevin’s topic was things to bear in mind when drafting contracts governed by the law of a civil-law jurisdiction. It’s a topic I haven’t seen addressed in print, so I permit myself to bug [...

“Obligate” v. “Oblige”

Posted on June 24, 2009
In this comment to a previous post, reader Mark Anderson expressed a preference for saying that parties are obliged to do something, rather than obligated. He suggested that use of the verb obligate is the result of the noun obligation being pressed into service as a verb...

Questionable Defense of the Month: “I Signed the Contract in the Wrong Place”

Posted on June 24, 2009
Today the Law Shucks blog posted this item about a former IBM executive, David L. Johnson, who is claiming that his noncompetition agreement with IBM is unenforceable. One element of his defense is that he signed the contract in the space where IBM was supposed to sign...

Questionable Defense of the Month: ?I Signed the Contract in the Wrong Place?

Posted on June 24, 2009
Today the Law Shucks blog posted this item about a former IBM executive, David L. Johnson, who is claiming that his noncompetition agreement with IBM is unenforceable. One element of his defense is that he signed the contract in the space where IBM was supposed to sign...

?Obligate? v. ?Oblige?

Posted on June 24, 2009
In this comment to a previous post, reader Mark Anderson expressed a preference for saying that parties are obliged to do something, rather than obligated. He suggested that use of the verb obligate is the result of the noun obligation being pressed into service as a verb...

A Contract-Language French-English ?False Friend?

Posted on June 23, 2009
In the course of considering, for purposes of today’s post on time is of the essence, how contracts are drafted in Quebec, I came across an oddity of the sort that I wouldn’t have expected to encounter in contract language?an instance of “false friends,” in other words pairs of words in two different languages that [...

Enforceability of ?Time Is of the Essence? Provisions in Civil-Law Jurisdictions

Posted on June 23, 2009
At the 2008 ABA annual meeting I appeared on a panel with Kevin Kyte, partner at the Montreal office of Stikeman Elliott. Kevin’s topic was things to bear in mind when drafting contracts governed by the law of a civil-law jurisdiction. It’s a topic I haven’t seen addressed in print, so I permit myself to bug [...

Having Your Contracts Drafted Offshore-Do You Really Want to Do That?

Posted on June 18, 2009
I’ve recently seen and heard references to companies offshoring the task of drafting contracts. For example, this article in today’s London Times says that Rio Tinto has hired a team of Indian lawyers “to work for it on tasks such as reviewing documents and drafting contracts...

“Represents, Warrants, Covenants and Agrees”

Posted on June 18, 2009
I received the following cry of despair from a Canadian reader: I’m preparing a partnership agreement and have been given precedent to work with. Using MSCD, I have spent some time trying to rework the precedent’s archaic language to make it more readable...

Drawloop-Automation of Routine Sales Contracts

Posted on June 16, 2009
It seems as if every couple of months I find out about another company that’s somehow involved in the contract-automation business. Yesterday I learned about Drawloop. It offers general document-automation services, including automation of routine sales contracts, presumably using mail-merge type functionality...

Expert Testimony and Ambiguity

Posted on June 16, 2009
Recently I wanted to find out more about use of expert testimony to resolve contract ambiguity. (Remember, ambiguity arises when a contract provision is capable of expressing two or more inconsistent meanings.) So I consulted Walter R. Lancaster & Damian D...

Part 1 of the “Drafting Clearer Contracts” Webcast Series Launched

Posted on June 12, 2009
Yesterday saw the first broadcast, in a “live” session, of part 1 of my new webcast series “Drafting Clearer Contracts.” The topic was the front and back of the contract. Because I had prerecorded the webcast, the broadcast was a zero-stress affair...

Apostrophe in “Shareholders Agreement”?

Posted on June 12, 2009
I’ve previously written about whether to use stockholder or shareholder; see MSDC 12.336 and this blog post. (I say it doesn’t matter which you use.) Here’s a related issue that’s just as thrilling: should you say shareholders’ agreement, with an apostrophe, or shareholders agreement, without the apostrophe? (Obviously the same debate applies to stockholders’ agreement...

Addresses That Aren’t So Dependable

Posted on June 12, 2009
In contracts, addresses occur in the notices provision. And if a contract doesn’t include a notices provision, usually I’ll include in the introductory clause the address of any individual that’s a party, so as to distinguish that individual from anyone else with the same name; see MSCD 1...

Is Uncertainty Over the Meaning of “Occurrence” Susceptible to a Drafting Solution?

Posted on June 11, 2009
Can astute contract drafting can forestall all contract disputes? No, it cannot. Most contract disputes, sure. But not all. For example, vagueness is an essential tool for the contract drafter, as often the future is too uncertain to allow you to be precise...

The Construction Specifications Institute and Use of the Imperative Mood in Architectural Specifications

Posted on June 10, 2009
I’ve recently become acquainted with a specialized form of contract language-architectural specifications, which are attached to construction contracts and define the requirements for products, materials, and workmanship on which the contract is based and requirements for project administration and performance...

Two PowerPoint-Related Technologies Behind My Webcasts

Posted on June 05, 2009
Each of my webcasts-or rather the first five, solo webcasts-consists of a narrated and annotated PowerPoint presentation. That sounds simple enough, but it’s not the norm in the webcast world. Webcasts for the most part consist of phoned-in audio or talking-head video...

A Recent English Commercial-Law Decision on Waiver Language

Posted on June 05, 2009
This Mace & Jones “Education Update” alerted me to the recent English case of KG Bominflot Bunkergesellschaft fur Mineralole MBH & Co KG v Petroplus Marketing AG (2009). Here’s the gist of it: The buyers purchased from the sellers fuel oil that tested OK before shipping but was found to be unsatisfactory on arrival...

“Remediate” v. “Remedy”

Posted on June 03, 2009
In contracts and elsewhere, it’s standard to refer to remediation of environmental contamination. It’s also standard to use the verb remediate to refer to the act of remediation. But Garner’s Modern American Usage isn’t fond of remediate: remediate, a back-formation from remediation, is either a needless variant of remedy or a piece of gobbledygook...

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