Marvin Garfinkel discusses a wide variety of problematic provisions from different types of transactions. He pinpoints and explains common drafting mistakes and traps. For example:
What 35 issues must you consider in drafting provisions concerning defaults (p. 186)
What are six key steps you should consider in the document negotiation process? (p. 29)
What is a “trumping provision” and what key language should the provision include (p. 186)
How do you draft a provision concerning “counterparts” that clearly establishes the agreement’s effective date (p. 70)
How should you negotiate and draft indemnification and exculpation provisions to best protect your clients? (p.233)
Real World Document Drafting® analyzes more than 50 sample provisions, contains more than 1000 footnotes, discusses more than 800 cases, and includes complete sample forms dealing with:
Letter of Intent and Term Sheet provisions
Important generic definitions
Alternative types of indemnification provisions
Why You Need This Book
Real World Document Drafting® will help you draft:
Document drafting is an essential skill for lawyers. Regardless of one’s specialty or practice setting, almost every lawyer needs to draft, modify, explain, critique, or review legal documents.
Well-drafted legal documents clearly set forth the terms of a deal, protect and advance a client’s interests, reduce the likelihood of disputes, and establish the framework for successful business relationships. Because the drafter must usually try to accomplish all of these objectives, good document drafting requires skill and experience. Lawyers must use drafting techniques that clearly document their transactions and integrate legal and business concepts to create effective contracts.
Marvin Garfinkel draws upon his extensive experience in real estate (leasing, financing, common interest communities, defaults), bankruptcy, product distribution, licensing, mergers and acquisitions, and other business transactions to explain and illustrate drafting techniques. Readers will benefit from his guidance and learn ways to avoid the many problem areas and traps for the unwary that lead to misunderstandings and disputes.
This book covers the legal principles and skills related to negotiating and drafting a range of contracts. It explores the underlying principles of contract law that apply to specific contract provisions and considers alternative ways to resolve issues in the course of negotiations. Mr. Garfinkel teaches readers how to produce readily comprehended legal documents that can serve as roadmaps for business relationships and can reduce the possibility of related litigation.
2010 • softbound 354 pp. • ISBN: 9780831899806 • future supplements invoiced separately and may be returned without obligation • Order Code BK70
Marvin Garfinkel is a transaction lawyer with over fifty years of broad experience involving real estate, intellectual property, common interest communities, bankruptcy, financing, product distribution, mergers and acquisitions, and beverage law.
In addition to being an advisor for the Restatement of the Law, Third, Property, Real Estate Financing (Mortgages), and the Restatement of the Law, Property (Servitudes), Mr. Garfinkel has previously been Chair of the Commercial Leasing Committee and also the Committee on Easements, Restrictions and Covenants of the Real Property Division of the American Bar Association. He has served as chair of the Landlord and Tenant Committee of the Pennsylvania Bar Association and has been a member of the Joint Editorial Board for Uniform Real Property Acts.
Mr. Garfinkel has served as an advisor or member of the editorial board of a number of legal publications, statutory drafting commissions and , study projects and Uniform Law drafting committees He has been a member of the Editorial Board of the Practical Lawyer and The Real Estate Practical Lawyer, Chair of the ALI-ABA courses of study on Condominiums and Planned Unit Developments, Condominium Conversions, Condominium Documentation and Real Estate Defaults and has appeared regularly as a faculty member on the ALI-ABA courses on Commercial Real Estate Financing and Commercial Leasing. He also has appeared on various ABA, State and Local Bar Association Programs, ICSC and other CLE and real estate and banking industry programs and his articles appear regularly in legal and trade publications.
Mr. Garfinkel received a J.D. magna cum laude from the University of Pennsylvania and an LL.M. in Taxation from New York University. He is a charter member of the American College of Real Estate Lawyers, having been chair of its Common Interest Ownership Committee. Mr. Garfinkel is admitted to practice in the Commonwealth of Pennsylvania and the State of New York and before the United States Supreme Court. He is Of Counsel with Drinker Biddle & Reath in Philadelphia.
Introduction • Description of Subject Matter • Authority References in this Book • Perpetuation of Legal Form • Adversarial Aspects of Transactional Document Drafting • How Lawyers Read Documents • Structure, Purpose and Use of This Book • Negotiation Component
Preliminary Considerations • Who Is Your Client? • Understanding the Deal and Your Client's Goals and Perspective • Letters of Intent, Memoranda of Understanding and Term Sheets • Related Documents • Preparation of First Draft: Control of Drafting Process • First Draft Advantages • Reasons Not to Prepare First Draft • Responses to Initial Draft Received from Other Side • Sources of Forms • Transaction Phases • Confidentiality Agreements • Check Lists • Drafting Economics: Precision Is Not Cheap • Incorporation by Reference and by Presumption • Format and Organization of Document • Date of Document • Identification of Parties • Recitals • Headings • Legalese • Definitions • Paragraph and Section Direct and Cross-References • Standard Rules of Construction • Formal Requirement • Internal Consistency • Say What You Mean and Mean What You Say • Retention of Drafts in Progress • Significance of Negotiation History • Document Appearance • Counterparts • Schedules and Exhibits • Describing Time Periods• Good Drafting Practices • Review and Editing • Use of Litigated Provisions • Use of Latin and Foreign Words and Expressions • Use of Word-Processing Programs • Amendments • Dealing with Remote Risks
Ambiguities • What Is an Ambiguity? • Types of Ambiguities • Joint or Several Use of Conjunction “And” • Resolution of Ambiguities • Words and Phrases to Avoid • Additional Limitations • Misplaced Phrases • Adverbs, Adjectives and Transitive Verbs • Prepositions • Conjunctive-Disjunctive Confusion: “And/Or” • Singular v. Plural: Ambiguous Plurals • Active v. Passive Voice • Intentional Vagueness • Punctuation • Contra Proferentem: Ambiguities Interpreted Against Drafter • Specific Words and Terms
Litigation Issues and Traps • Formal Requirements for an Enforceable Contract • Contract Construction and Interpretation • Explicit Provision for Best Efforts or Other Levels of Performance • Good Faith and Fair Dealing • Integration (Merger) Provisions: Post-Execution Oral Modifications • Best Evidence: Admissibility of Facsimile Copies • Contracts of Adhesion • Unconscionability • Illegality • “No Default” Conditions • Closing Conditions • Conditions v. Obligations: Conditions Precedent • Forfeiture • Is There an Obligation to Negotiate in Good Faith? • Statute of Frauds • Expressio Unius Est Exclusio Alterius: Limitation v. Illustration • Ejusdem Generis: Confusing Specific with General • Strict v. Liberal Construction • Use of Different Phrases to Convey Identical Concept • Handwritten v. Typed Provisions • Typed v. Printed Provisions • Rule of Last Antecedent • Rule of Adopting Construction That Favors Validity • Contra Proferentem: Ambiguities Interpreted Against Drafter • UCC Article 2 • Performance Standards • Substantial Performance • Illusory Contracts
Achieving Clarity • Words and Expressions to Avoid • Use of “Aforesaid,” “Hereinafter,” “Hereby,” “Hereof” and “Herein” • “Forthwith" • “Terms and Conditions” • “Because” • “Willful” • “Said” • “Up To” • “Any,” “Every” and “A” • “With Cause,” “For Cause” Or “For Reasonable Cause” • Couplets: Repetition • Avoidance of Run-on Sentences • Use of Word “Shall”: Discretionary or Mandatory • Use of Term “So Long As” • Flexible Words and Phrases • Legal Words and Terms of Art • Compound Prepositions
Defaults and Remedies: Forfeitures • Need for Declaration of Default • Notice of Default With Opportunity to Cure; • Structure of Default Provisions • After Notice Failure to Cure Breach Ripens • into “Event of Default” • Exercise of Specified Remedies Subject To Notice • and Opportunity to Cure • How Is Notice of Default to Be Sent? • Actual Receipt Requirement • Exclusive Method Provisions • Presumption of Delivery and Proof of Delivery • Use of Facsimile Delivery • Electronic Tracking of Delivery • Return Address on Envelope • Residential Delivery Concerns • Multiple Notices • Contents of Notice • Notice Given by Third Party • Issues Regarding Notice and Cure Provisions • The Yellowstone Situation • Protection of Defaulting Party • Notice Formalities • The “Incurable Default” • Cumulative Remedies and Doctrine of Limitation of Remedies • Background • Drafting Approaches - Cumulative Remedy Provisions • Specific and Substitutional Remedies • General Damages • Incidental Damages • Consequential or Special Damages • Background • Drafting Approaches • Punitive Damages • Liquidated Damages • Background • Drafting Approaches for Liquidated Damages • Additional Remedies
Boilerplate and Other Specific Provisions • What Is Boilerplate? • Defaults and Remedies: Forfeitures • Time of the Essence • Severability • Force Majeure • Termination and Renewal • Alternative Dispute Resolution • Choice of Law and of Venue • “Conditions” v. “Covenants” v. “Provisos” • Indemnification • Consent and Approval Provisions • Computational Provisions • Third-Party Beneficiary Provisions • Dealing with Options • Non-Disclosure Undertaking: Confidentiality Agreements • Modification and Amendment Provisions • Rights of First Refusal and of First Offer • Representations and Warranties • Notice Provisions • Market-Shift Protection Devices • Limitations on Liability for Breach • Contractual Limitations of Action Periods • Exculpatory Provisions • Due Diligence Provisions • Waiver of Jury Trial • Further Assurances • Anti-Waiver Provisions • Assignment, Delegation, Assumption and Novation • Succession
APPENDIX I LETTER OF INTENT TERM SHEET PROVISIONS
APPENDIX II YELLOWSTONE PROVISION
APPENDIX III GENERIC DEFINITIONS
APPENDIX IV INDEMNIFICATION