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Contracts say what the parties must do. But what about what they can’t do? For nearly a century since the landmark Kirke La Shelle v. Armstrong ruling (263 N.Y. 79 (1933)), New York has relied on the implied covenant of good faith and fair dealing to say what is prohibited by implication. The covenant says […]

When you’re a hammer, everything looks like a nail. This dynamic very much applies to lawyers: we tend to assume that we are the natural vehicle through which disputes get resolved. If two parties can’t come to an agreement, lawyers step in and litigate, arbitrate, or negotiate a settlement. Contracts that get breached get litigated.

Thomas Edison famously remarked that “the value of an idea lies in the using of it.” But who gets to exploit the idea? It depends on what is specified in the contract—and the details matter. This post breaks down the details of who gets to use ideas—namely three buckets of intellectual property (IP). Specifically, we

Liability caps are hard to miss. They often appear bigger than Dallas in the middle of an agreement, with ALL CAPS and sometimes bolded letters. While easy to find, these caps are often misunderstood. This post breaks down liability caps, including their purpose, mechanics and what can be negotiated: 1. To Whom Does the Cap

While not exactly fine wine, good contracts age well. Bad contracts, by contrast, age like spoiled milk. As the commercial relationship evolves, poorly written contracts show their age quickly. This post breaks down a few failure points in contracts and what can be done to mitigate these risks: 1. Too Much Specificity. Most business relationships

No one particularly loves boilerplate legal terms. Tom Hanks captured the view in his comparison of reading a script to reading a boilerplate legal document—equally boring. So why do boilerplate terms exist? In short, boilerplate terms exist to control uncertainty. This blog has covered how even minor variations in standard terms can create risk for

Most of us have heard of the 4 Ps of marketing: product, price, placement, and promotion. What about the 4 Cs of good contracts? A solid contract generally meets the 4 Cs of clarity, certainty, consensus, and completeness. Contract negotiation is the craft of coming to a consensus on terms and reflecting those as clearly

As the old joke goes, a contract is a list of ways the other person can hurt you. Many of us go into contract negotiations expecting to find obvious hurt—big-dollar penalties, limitations on the other side’s liability, and aggressive timelines. But much of the danger in contract negotiations lurks in less obvious places. This blog

We all think of ourselves as reasonable. We also want others to think of us as reasonable. Hence, “reasonable efforts” are usually an easy ask when negotiating contracts. If something is a hard-and-fast requirement, changing it to “reasonable efforts” doesn’t seem inherently unreasonable. By the same token, asking the other side to make “reasonable efforts”

Contracts are negotiable. As we’ve long argued on this blog, your preferred terms are often just an ask away. With a good lawyer—and perhaps AI tools—it is quite easy to spot and redline disadvantageous terms and insert your preferred language. Then why is the first contract draft so important? This post breaks down the (slightly