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Contract Drafting Class 11 Tues. Feb 21

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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  1. Contract DraftingClass 11Tues. Feb 21 University of Houston Law Center D. C. Toedt III

  2. Sort into teams for next two weeks

  3. Common contract screw-ups

  4. When spell-checker isn’t enough … Sprinkle pasta dish with … salt, and … freshly groundblack people Copies pulped - $18K down the drain

  5. Drafting strategies

  6. Letting sleeping dogs lie … Jan 2010: CoCo’s contract lawyers might have chosen not to ask for a 11:35 pm start time guarantee …

  7. Plain English (cont’d)

  8. Passive voice exercise 1. There is a considerable range of expertise demonstrated by the spam senders.

  9. 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.”

  10. Representations and Warranties, cont’d

  11. 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

  12. 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

  13. Warranty claims: RELIANCEPROOF

  14. Warranty claims: SCIENTERPROOF

  15. Stark Exercise 9-1, Examples 1-7

  16. End of class

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