Conspicuous does not mean ALL CAPS.
American General Finance, Inc. v. Bassett (9th Cir. 2002):
Lawyers who think their caps lock keys are instant “make conspicuous” buttons are deluded.
Typography for Lawyers 1e, page 89:
Don’t assume caps are either necessary or sufficient to satisfy a law requiring “conspicuous” text.
UCC 1-201(b)(10) explicitly mentions easier-to-read alternatives.
Recitals of consideration don’t work.
Reconsidering the Recital of Consideration:
In general, drafters shouldn’t use this kind of recital of consideration or any other—they’re unnecessary.
The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.
Redundant digits cause trouble.
A Manual of Style for Contract Drafting 4e 14.9:
[U]sing words and digits is more of a problem than the issue it was intended to fix—digit mistakes.
Different “efforts” standards aren’t clear at all.
A Manual of Style for Contract Drafting 4e 8.2:
The notion that different efforts standards impose obligations of different levels of onerousness is an illusion.
Warranty disclaimers don’t have to run on.
UCC 2-316 (2) and (3):
Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability…and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.…
Notwithstanding subsection (2)
- unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty…
Every contract needs a no-third-party-beneficiaries clause.
Glenn D. West’s “On Naval Ramming Bows and Contractual Boilerplate”:
The concept that someone ca be an implied third-party beneficiary is overstated and largely a myth.
[L]ike the naval ramming bow of the past, which was created in response to a faulty perception of need and thereafter became not only useless, but also dangerous, there are cautionary tales related to the indiscriminate use of boilerplate “no third-party beneficiary” clauses, especially in light of the law’s reluctance to conclude that a nonparty is an intended third-party beneficiary in the first instance.
Choice-of-Law Clauses Need to Exclude Conflict-of-Laws Principles
John F. Coyle’s “A Short History of the Choice-of-Law Clause”:
Even though the position [that governing laws means the internal law] taken by the _Second Restatement_ accorded with the preferences of virtually all parties, and even though this position was followed by virtually every U.S. court to consider the issue, there was still the lingering possibility that a judge might misinterpret the intended meaning of the word “laws” in a choice-of-law-clause. To guard against this remote possibility, some contract drafters began to redraft their clauses.
It is something of a mystery which this language caught on in the 1980s.