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December, 2014
Volume 1, Issue 4
 
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THE BUSKLAW NEWSLETTER
 

 
MANY LAWYERS WRITE CONTRACTS.

I WRITE CONTRACTS IN PLAIN ENGLISH.

I SPECIALIZE IN INFORMATION TECHNOLOGY TRANSACTIONS.

I HAVE OTHER CORPORATE LAW EXPERTISE TOO.
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Chadwick C. Busk
ABOUT CHAD:
 
 For 34 years, as in-house counsel, I handled the legal aspects of all IT deals for a major West Michigan retailer.
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I reviewed, drafted, and negotiated a lot of other contracts too. 

I write contracts in Plain English, i.e., with no legal jargon.
I'm a 1974 Hope College graduate (magna cum laude) and a 1977 graduate of Notre Dame Law School.
I retired from my in-house position in June, 2014, to focus on writing contracts extremely well for the benefit of my corporate clients.  
PLAIN ENGLISH **XMAS** QUOTE OF THE MONTH 
(from E.J. Scrooge - had he been a lawyer)
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"I wear the chains I forged in life....I wear the chains of legalese...."

From "A Legal-Writing Carol," Michigan Bar Journal, December 2012. 
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HOW TO GET PREVIOUS BUSKLAW NEWSLETTERS:

Interested in BUSKLAW Newsletters from prior months? Here are the links: 


 
Month/Year Topic Link
September 2014 Why Plain English http://eepurl.com/2o_Jv
October 2014 IT SOWs from the Customer’s Perspective http://eepurl.com/4N4v5
November 2014 Master Professional Services Agreements http://bit.ly/1I0RhUc
 
Focus on:

HOW **NOT** TO FORM A CONTRACT BY YOUR EMAIL

Most companies have standard email disclaimers. They usually say something like: "This email is intended for the named recipient only. If you received this email in error, please notify the sender immediately, and then delete it." But this disclaimer is inadequate if your company enters into contracts, because courts have decided that a valid contract can be formed through a simple exchange of emails. 

Many corporate executives believe that their companies can't be legally bound to a contract unless it is in writing, on a separate document entitled "contract" or "agreement," and signed by someone in ink - usually an officer - having the authority to bind the company.

None of these assumptions are true. 

First, the law recognizes that emails are "writings," and that they don't have to contain the word "contract" or "agreement" to create a binding deal. Second, ink signatures are not necessary to create a contract - your typed email name is fine. Third, it doesn't matter if your management has given you authority to bind the company or not. A court would likely decide that you have "apparent" authority to act for (and thus bind) the company, regardless of your title.

To avoid an email contract, you need, among other things, to have an appropriate contractual disclaimer as part of your standard email disclaimer. An effective contractual disclaimer will prevent the other side from claiming that your email formed a contract, unless you affirmatively state otherwise. The correct "magic language" for preventing contractual formation depends on the nature of your business, what contracts you have, and your standard procedure for entering into them. There is no one size fits all in this realm. 

So, be wary of your emails. Like the ghost of Jacob Marley, they could come back to haunt you with a contract that you had no intention of making  - and are now stuck with! 

TIP OF THE MONTH ABOUT EMAILS

Emails are an effective business tool. How did we ever do any business before they existed? But the email tool is subject to misuse. It's so easy to fire off a quick response without thinking through the implications of your message. And emails are discoverable in any lawsuit involving your company, unless your company has adopted a formal record retention policy that deletes them after a certain period, e.g., 90 days. It is vital that every company, regardless of size, have a record retention policy and a record retention manager to support (and enforce) the policy. Companies that lack record retention policies  destroy their emails - and other corporate records - at their peril.  

PLAIN ENGLISH RANT OF THE MONTH:

LEGALISMS - WORDS (OR PHRASES) THAT ADD NOTHING TO A CONTRACT (and may cause confusion leading to litigation):
  • herewith, hereto, herein, hereby, hereafter, hereinafter, hereinabove
  • therewith, thereto, therein, thereby, thereafter, therefore, therefor
  • "notwithstanding the foregoing," "pursuant to," "in connection with," "in relation to," "subsequent to," "in accordance with," "whatsoever," "for all purposes," "made and entered into," "from and against," and "duly"
If your contracts contain any of these, hire a lawyer who can intelligently remove them!!!! 
 
 

Please visit my website for more articles and more about my areas of expertise. 

Let me know if there are any legal topics related to commercial or IT contracts that you would like me to discuss in future newsletters. 

 

And please consider sharing this newsletter with your colleagues! 

DISCLAIMER AND CONTACT INFORMATION:

Copyright © 2014 BUSKLAW PLC. All rights reserved.


Nothing in this newsletter can be construed to be legal advice or create an attorney-client relationship with the reader. If you would like to find out more about me or my services, please email me or call me at 616-951-3947. 


My email address is: 
busklaw@charter.net

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