BoostDraft

Contract drafting is very different from expository writing (literary, creative, legal writing). Expository writing is one-way: it takes something in the writer's brain and conveys it to the reader's brain. Contract drafting is two-way: the goal is to get to a meeting of the minds. Clients usually think they have reached it, but actually, they only got to the first step. It's the lawyer's job to translate it to the meeting of the minds. Here's an example of what I'm talking about: A client calls me and says "We've just agreed to buy equipment from Seller for $1 million. Draft a purchase agreement, but don't spend a lot of time on it. We want it signed tomorrow." My job as a lawyer is more than to just do what the client says. It's to think about all the business issues that they haven't thought about. For example: + what are the payment terms? + what are the delivery terms? + how will the client know if the equipment works? + what remedies will the seller provide if the equipment doesn't work? + how do we know that the seller actually has good title to the equipment? And so on... Only once there's a meeting of the minds, can a contract be drafted precisely enough to reflect that meeting of the minds. In an ideal world, the contract should be so precise that there's no way for the parties to disagree about what the "contract" is, and every future reader (whether it's the client, litigators or the judge) would interpret the language the same way. #contracts

Today's contract tip is about using multiple definitions for similar terms. I've seen this approach used by some vendors to avoid responsibility for third-party elements incorporated into their own products. Most commercial contracts make the vendor liable for any infringement or misappropriation involving third-party IP incorporated into the vendor's product. But some vendors use a subtle drafting technique to avoid that responsibility. These vendors create a separate definition of their product that excludes any third-party IP. Let's take the example of a vendor licensing a software program that incorporates open-source software The vendor might create one definition of the software program that includes both its own code and the open-source software. This defined term might be something like "Product." The vendor would then use another definition that includes only its own proprietary code, labeling it as "Software." Then the vendor would use the term "Software" (the term that includes only its own code) when identifying what software is covered by the IP indemnification and other provisions. Whenever you see two definitions covering similar concepts, make sure to take note of the differences and watch for how they are used. Have you seen this in the contracts you receive? #HowToContract #contracts #lawyers