Show:
Contract-language types
General provisions
Risk allocation
Reps & warranties
Miscellany
100
This category of contract provision is a promise or commitment to do or not do something.
What is a covenant?
100
Under the so-called "American rule," this party can recover its attorney fees if it prevails in contract-related litigation if the contract does not say otherwise:
What are "None"?
100
This type of contract provision is a promise to reimburse a person for any harm the person might suffer from a stated event.
What is an indemnity provision?
100
A representation is a statement about facts in these time frames.
What is past and present?
100
This remedy for breach of contract --- seldom granted unless the contract itself provides for it --- basically "unwinds the deal."
What is rescission.
200
This category of contract provision is a promise to pay the other party's damages if a statement about a past-, present-, or future fact proves incorrect.
What is a warranty?
200
Under Texas law, when a plaintiff successfully asserts a contract claim against a  defendant, if the plaintiff wishes to recover its attorney fees under Tex. Civ. Prac. & Rem. Code sec. 38.001, the defendant must be in one of these two types of person or entity:
What are an individual or a corporation?
200
If a drafter had her "thinking cap" on, she could draft this type of limitation of liability (A) as "one size fits all," or (B) as separate limitations for different categories of events.
What is a damages cap?
200
In a normal purchase-and-sale contract, this party will normally want to think about whether a particular statement should be a representation or a warranty (the other party will want it to be both).
What is the seller?
200
Under the rule of contract interpretation known by this Latin phrase, an ambiguity in a provision is resolved against the party that drafted the provision --- IF other rules of interpretation don't provide a resolution.
What is contra proferentem?
300
In most U.S. jurisdictions "hold harmless" is treated as a synonym for this type of contract term.
What is "indemnify"?
300
If a contract provision gives Alice the right to unilaterally amend the contract but does not put certain limits on that right, then the entire contract might be unenforceable because it is "ill" in this way:
What is "illusory"?
300
Alice is hiring Bob to do some work in her factory. Her draft of the contract requires Bob to indemnify Alice for any harm that might occur to any of his employees while at Alice's factory. To make sure everyone sees "eye to eye," Alice should also consider inserting a provision requiring Bob to enter into and maintain this type of ancillary contract to make sure there is a pot of money available if necessary to support Bob's indemnity obligation.
What is an insurance policy?
300
In a contract case, if Alice successfully proves the elements of misrepresentation, she might be entitled to one or both of these two remedies:
What are 1) punitive damages, and 2) rescission of the contract.
300
The former CEO of software giant Computer Associates spent nearly ten years in federal prison for engaging in this "35-day month" contract-signing practice for the purpose of falsifying the company's financial statements.
What is backdating the contract?
400
This archaic introductory section of a contract has been replaced, in modern drafting, by the "Background" section.
What is a "Whereas" clause?
400
An entire-agreement provision, by itself, won't preclude an aggrieved party from claiming misrepresentation unless the entire-agreement provision includes this type of disclaimer:
What is a reliance disclaimer?
400
In some vendors' contract forms, the list of excluded damages will sometimes include (that is, exclude) this category of damages, of which one of the examples in UCC art. 2-715 is "commercially reasonable charges, expenses or commissions in connection with effecting cover ...."
What are incidental damages?
400
For Alice to successfully sue Bob for breach of a warranty in a contract, Alice must demonstrate these THREE things:
What are: (1) a statement about a past, present, or future fact, made by or attributable to Bob; (2) the statement's falsity; (3) a reasonable quantification of the damages that Alice suffered as a result of the statement's falsity.
400
Under the rule of contract interpretation known by this Latin phrase, if a contract term says "food, including apples, oranges, and pears" then a court might limit the term "food" to fruits.
What is ejusdem generis?
500
This three-word phrase can be used to cause an external document to be treated as part of a contract.
What is "incorporated by reference"?
500
A drafter whose client didn't have superior bargaining power might not want to include this provision stating where any litigation is to take place:
What is a forum-selection clause?
500
Under the law in Texas (and some other places), if a contract provision requires Alice to indemnify Bob against the consequences of Bob's own negligence, that provision must be each of these two things or it will be unenforceable.
What areis express and conspicuous.
500
For Alice to successfully sue Bob for misrepresentation in a contract, Alice must demonstrate these SEVEN things:
What are: (1) a statement about a past or present fact, made by or attributable to Bob; (2) the statement's falsity; (3) scienter: Bob's negligence, recklessness, or intent to deceive in making the statement; (4) Bob's intent that Alice rely on the statement; (5) Alice's actual reliance on the statement; (6) the reasonableness of Alice's reliance; and (7) a reasonable quantification of the damages that Alice suffered as a result of the statement's falsity?
500
This is Prof. Toedt's favorite, all-purpose, two-word question when asking clients about business terms:
What is "anything else?"