Contract drafting class 11 tues feb 21
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Contract Drafting Class 11 Tues. Feb 21. University of Houston Law Center D. C. Toedt III. Sort into teams for next two weeks. Common contract screw-ups. When spell-checker isn’t enough …. Sprinkle pasta dish with … salt, and … freshly ground black people

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Contract Drafting Class 11 Tues. Feb 21

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Contract DraftingClass 11Tues. Feb 21

University of Houston Law Center

D. C. Toedt III


Sort into teams for next two weeks


Common contract screw-ups


When spell-checker isn’t enough …

Sprinkle pasta dish with …

salt, and …

freshly groundblack people

Copies pulped - $18K down the drain


Drafting strategies


Letting sleeping dogs lie …

Jan 2010:

CoCo’s contract lawyers might have chosen not to ask for a 11:35 pm start time guarantee …


Plain English (cont’d)


Passive voice exercise

1. There is a considerable range of expertise demonstrated by the spam senders.


Passive voice exercise

1. There is a considerable range of expertise demonstrated by the spam senders.

BETTER: “The spam senders demonstrated a considerable range of expertise.”

BETTER STILL: “Evidently some spammers are experts – others, not so much.”


Representations and Warranties, cont’d


Review: Pros and cons of reps and warranties

  • Representation

    • Not strict liability – must also prove scienter (intent or recklessness), plus justified reliance

    • “As of” date

    • Punitive damages, rescission

    • Burden of discovery, pre-trial motion practice

  • Warranty

    • Strict liability – scienter & reliance not relevant

    • Can survive for months / years

    • Fewer hassles with discovery, pre-trial motions


CBS v. Ziff-Davis – sale of magazine division

  • Rep/warranty re financial statements

  • Due diligence: Accounting problems

  • Lawsuit: Misrep. + breach of warranty

    (really: litigating the price afterwards)

  • Holding:

    • No misrep.: Reliance not justified

    • BUT: Warranty claim succeeded

  • Parties settled after appellate holding


Warranty claims:

RELIANCEPROOF


Warranty claims:

SCIENTERPROOF


Stark Exercise 9-1, Examples 1-7


End of class


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