March 2011

There’s such a good discussion bouncing around a few law blogs that I couldn’t resist a quick post on a non-contracts topic. Toby Brown, one of the “geeks” at 3 Geeks and a Law Blog, and Ron Friedmann, the writer of the Strategic Legal Technology blog, started the discussion Tuesday with this post, which appears on both blogs. Mary Abraham chimed in with this post at the Above and Beyond KM blog, and Stephen B. Levy contributed to the discussion with this post at the Lexician blog. More good discussion is sure to come.

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In this post on his Commitment Matters blog, Tim Cummins of the International Association for Contract & Commercial Management (IACCM) writes that “we must stop allowing the contract to be used primarily as a vehicle for protecting against the consequences of failure and start to use it equally as a tool for reducing the probability of failure.” Cummins advocates (in this post and others) using the contracting process to ensure a good fit with customers and suppliers, as well as using contract terms to promote collaboration between the parties in the course of their business relationship. I think such an approach would also require more collaboration between legal and their business clients. What do you think? Should contracts be viewed as a tool for collaboration?

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The AP Style Guide changed its preferred spelling of the abbreviated form of electronic mail to email (without the hyphen) over the weekend. This is an example of the tendency of language to become more simple over time. Languages are living after all, and rules of style and usage change along with the cultures they are a part of.

The change to email made me wonder whether one of the most common grammatical mistakes I see in well-written contracts is not an error, but rather an evolutionary change of the language. So, I wonder, is it still proper to use a possessive with a gerund? [click to continue…]

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I’ve been asked on occasion whether a company can post its standard terms and conditions online and incorporate them into their contracts by inserting a reference in each contract to the online terms. The answer in many cases is yes, but there are some issues to navigate. This excellent article, which appeared in the April 2010 newsletter of the Business Law Section of the North Carolina Bar Association contains an overview of the issues involved, as well as some helpful recommendations.

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In this recent post I discussed some habits that businesses can adopt to increase their contract hygiene. These practices, which can improve a business’s health, are inexpensive and effective, yet often neglected.

To recap, the first three habits are:

  1. Negotiate before you sign.
  2. Give important contracts special attention.
  3. Don’t sign the other side’s boilerplate terms and conditions. [click to continue…]
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Thanks to a bout of insomnia and a shot of motivation I was able to tackle a few improvements to the blog recently. Here’s a quick summary.

Disqus

Out with the native Squarespace comment system and in with Disqus! I made the switch for back-end management convenience, to reduce issues readers had when posting comments, and to simplify the commenting process. Now you can comment via Facebook, Twitter, and Disqus logins. [click to continue…]

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I’ve long thought that the “battle of the forms” is easy to lose but impossible to win. That’s the perspective of a commercial attorney who approaches the issue from the front end—where the battlefield consists solely of varied hypothetical future situations. A litigator on one side or the other, of course, wins each battle that goes to trial.

The battle of the forms refers to the common practice of doing business via purchase and sale documents containing “small print” boilerplate and the interaction of each party’s boilerplate in determining the actual contract terms. [click to continue…]

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How can you increase communication and mutual understanding between contracting parties? In a comment to this post in Tim Cummins’s Commitment Matters blog, Dick Locke of the Global Procurement Group states, “The most important method is to minimize the amount of your contract that lawyers write.”

I was stunned when I read that. If it’s true, it’s a sad commentary on the performance of commercial attorneys. [click to continue…]

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