The BUSKLAW Newsletter

Some folks may believe that writing well and Christmas have little in common, but I dispelled that notion two years ago in  my post about writing well on Christmas . And I have uncovered additional evidence for this holiday season.  I wasn't looking for that evidence, but it popped up in a sales contract that I was reading. The line was something like, "If any Good is nonconforming...." Wait a second. How can the "Good" be non-conforming? Wouldn't that fall to the province of the "Bad"? Then it hit me: the drafter was using "Good" as the singular of "Goods," a term of art defined in the Uniform Commercial Code ("UCC"), the statute regulating the sale of Goods adopted by almost every State.  But not "Good." The UCC doesn't use that word. The reason is simple. Would you walk into your local dry cleaners and ask "Is my pant ready?" You would likely get a quizzical expression from the clerk who mi...

In my October post , we talked about the peril of a buyer ignoring the seller's "terms and conditions" in a sale of defective blueberries from Michigan growers. I suggested that the buyer could have prepared a "sales acknowledgment" to send to the seller along with the signed offer acceptance. This approach could have negated the seller's terms and conditions that contained numerous risk-shifting provisions skewing the deal in seller's favor. These provisions included restrictions that limited buyer's remedies if seller breached (which happened), mandatory jurisdiction and venue in seller's home town, and the requirement that the losing party in any court dispute pay the winning party's actual attorney fees, a provision that resulted in the buyer's payment of big bucks to the seller's lawyers.    Lawyers have an ominous name for this scenario: the "battle of the forms."  Generally, this battle occurs when contracting pa...

If you are a business person working with contracts, you probably already know that lawsuits - regardless of their outcome - are expensive and time-consuming. And "alternative" dispute resolution procedures such as arbitration don't fare much better if standard arbitration clauses are used. (I use a unique arbitration clause that streamlines the process.) It's better to avoid litigation or arbitration altogether; the best way to do that is to have a contract with provisions that discourage one party from filing suit - or an arbitration petition - against the other party.  What might these anti-litigation, anti-arbitration contractual provisions be? Several come to mind: 1.  A provision that in any lawsuit or arbitration between the parties, the losing party must pay the winning party's attorney fees and court costs. As Attorney Stephen Hulst points out in his Michigan Business Court Blog (9/1/2015) , "It's a good piece of leverage to have, to be ab...