The BUSKLAW Newsletter

  Most lawyers draft contracts. That's what lawyers do. And they use perceived terms of art ("TOAs") because they want to be paragons of contract-drafting precision. But here is where the canker gnaws:  the words that lawyers insert in their contracts as TOAs are actually not, potentially causing problems in clarity and interpretation. And as I've said time and again, these problems lead to disputes, and disputes lead to litigation, which is always time-consuming and expensive for the parties involved.  Let's first define TOAs in the legal context. According to Professor Bryan Garner in his Dictionary of Legal Usage , TOAs have specific, precise meanings that are "locked tight" and based on legal precedent. But then there are the faux TOAs, "whose meanings are often unhinged." Expert contract drafters, Garner says, know that clear, simple drafting is less subject to misinterpretation than using TOAs that are nothing more than "mere jargon....

  Continuing my quest to post about Michigan cases that are relevant to small(er) Michigan companies, there are two recent decisions from Kent County Business Court Judge Christopher Yates that business folks should keep firmly in mind. One case is obvious, the other less so, but let's have at it.  The first case involves the piercing of the corporate veil. You do know about the corporate veil, right? You can set up a corporation to insulate your personal assets from liability, but you can lose that protection if you play games to your creditors' detriment. That was the scenario in V&B Properties v Account-Ability Tax & Accounting LLC, et al . Defendant Account-Ability signed a real estate lease with Plaintiff V&B and then failed to pay $6300 in rent. After attempting to work things out, Defendant's principal (call her "Mrs. J"), decided to bag it, pay nothing to the V&B, and simply, through her husband ("Mr. L"), start a new accounting ...

  I'm at a loss to describe 2021 using American English, sorry. AmE has grown tiresome. Don't believe me? Just turn on your local TV news and listen for how many times the news people use "prior" instead of "before" and pepper their speech with "as well," frequently tacking it on after using "also" in the same sentence, as in "It will also rain tomorrow as well." How can all be WELL when every other sentence ends with AS WELL? Warning: don't play a drinking game to count the number of  AS WELLs or you'll be pished (as they say in Scotland) in 10 minutes. Which reminds me of why we should be thankful for Brit English to describe 2021: it was another year that we good guys got knackered .   Consider: Covid continues unabated - now improved with variants (get your booster, wear a mask)! The peaceful transition of the U.S. government after the 2020 presidential election almost didn't happen (can you say "insurrectio...

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...

  (Author's aside: Why no post since May? Because things have been busy here at BUSKLAW HQ - practicing law for clients!) When both parties to a contract breach it, what's a court to do? This was the issue presented to Kent County Circuit Court Judge Christopher Yates in Zackary Electric, Inc. v Knoebel Construction, Inc.  The facts are straightforward. Defendant Knoebel Construction was hired as a general contractor to build out an Altar'd State clothing store in Woodland Mall in Grand Rapids, Michigan. Knoebel in turn hired Zackary Electric as its electrical subcontractor for the project, and Zackary started work in July 2018.  On August 12, 2018, Zackary sent an invoice to Knoebel for $47K, but Knoebel did not promptly pay Zackary because Knoebel hadn't yet received any payment from Altar'd State. Unhappy with not being paid, Zackary left the job site on August 31, 2018, and it sent a letter to Knoebel declaring it to be in breach of the subcontract between ...

  In my August 2020 newsletter, we discussed lessons from the New York Supreme Court's rejection of the Trump family NDA. Drafting lesson #1 is the need to specifically describe the information covered by the NDA rather than vague references.  Unfortunately for Trump, this lesson wasn't learned, as evidenced by a recent New York U.S. District Court decision in the case of  J essica Denson v Donald J. Trump for President, Inc.   Plaintiff Denson was employed as a national phone bank administrator for the 2016 Trump campaign. Before she was hired, she signed the standard Trump employment contract containing broad non-disclosure and non-disparagement provisions. Confidential Information was defined as: ...all information (whether or not embodied in any media) of a private, proprietary or confidential nature or that Mr. Trump insists remain private or confidential, including, but not limited to, any information with respect to the personal life, political affairs, and/o...

In last month's post, we highlighted the story of the guy who purchased a vase from an uninformed seller at a Connecticut yard sale for $35. The vase turned out to be from the 15th century Chinese Ming dynasty, and it was auctioned off on  March 17 for over $700K . We discussed the contract doctrine of unilateral mistake that gives the seller no recourse and concluded that the application of the Golden Rule ("do unto others as you would have them do unto you") would lead to a different result.  As brought to my attention by the always informative ContractsProf Blog , it turns out that there's a somewhat similar "windfall" case (i.e., an unexpected financial benefit from getting something that is ostensibly worth little - or nothing)  involving the acquirer of someone else's assumed trash who, after applying some good old-fashioned mental elbow-grease, turned it into a treasure. And then applied the Golden Rule. But where did the Golden Rule come from? I...