Contract Drafting
Class 8
Thurs Feb 9
University of Houston Law Center
D. C. Toedt III
Syntactic sins
Preposition-piling
“In the richness of the English language, few
things can create as much mischief as piling
prepositional phrase upon prepositional phrase.
The child says, ‘I saw the man on the hill with the
telescope.’ Did the child use the telescope to see
the man on the hill? Or did the child see a man —
or even a hill — bearing a telescope?”
U.S. v. Rosales-Garcia, No. 10-4224, slip op at 16 (10th Cir. Feb. 7,
2012) (Gorsuch, dissenting)
Preposition-piling
“A newspaper headline heralds, ‘Brothers Reunited
after 20 Years on a Roller Coaster.’ Did the
brothers recently bump into each other at an
amusement park? Or were they the long suffering
experimental subjects of some evil genius?”
U.S. v. Rosales-Garcia, No. 10-4224, slip op at 16 (10th Cir. Feb. 7, 2012)
(Gorsuch, dissenting)
Common contract
screw-ups
Common contract screw-ups
“9. The contract that has a signature block
indicating that a particular form of signature
is required (eg two signatories or the use of
a seal) but these requirements are ignored
by the signatory.”
[From “Top 10 howlers when preparing contracts for signature,” by the
IP Draughts blog at http://goo.gl/Km6Dw.]
Drafting exercise:
Stark 18-5
Exercise 18-5: Legalese
In the event of the failure of If the Borrower aforesaid
fails to comply with the terms any term of the
aforementioned Note, the undersigned Guarantor
waives [notice of acceptance of this Guaranty,
diligence, presentment, notice of dishonor, demand for
payment, any and all notices] of whatever kind or
nature, and the exhaustion of legal remedies available
to the Note’s holder.
Stark Ex. 18-5 – further thoughts
“If” clause might not be desirable
 Be sure what you’re deleting

 Presentment
≠ notice
Organize your lists sensibly (semicolons
are good)
 Brevity must co-exist with clarity

Stark Ex. 18-5 – further thoughts
The Guarantor waives: (i) presentment of
the Note for payment; (ii) demand for payment; (iii) diligence on the part of the Holder
in seeking payment; (iv) the exhaustion of
legal remedies available to the Holder in the
event of nonpayment; and (v) all notices of
any kind, including for example notice of acceptance or of dishonor.
The Uniform Commercial Code (see
Z&B pp. 219-236)
The Uniform Commercial Code
QUESTION: What is the legal status of the
UCC in the United States?
A. Federal statute
B. Interstate compact
C. Template - identical in each adopting state
D. Template w/ state-by-state variations
The Uniform Commercial Code
QUESTION: What article(s) of the UCC
govern(s) the sales of goods?
A. Article 1
B. Article 2
C. Article 3
D. Article 4
E. None
The Uniform Commercial Code
QUESTION: What article(s) of the UCC
govern(s) the sales of services?
A. Article 1
B. Article 2
C. Article 3
D. Article 4
E. None
The Uniform Commercial Code
QUESTION: To what extent can parties to a
contract agree to vary the effect of the UCC?
A. Totally
B. Not at all
C. Cannot disclaim certain obligations
D. Cannot agree to unreasonable terms
The Uniform Commercial Code
QUESTION: Are sales of water subject to the
UCC? [Careful ….]
A. Yes
B. No
C. Yes in some circumstances, no in others
D. Yes in some jurisdictions, no in others
The Uniform Commercial Code
QUESTION: Are sales of software subject to
the UCC? Explain why or why not.
The Uniform Commercial Code
QUESTION: What is UCITA?
BONUS QUESTION: Who was the driving
force behind UCITA? [Hint: You’ve seen him]
The Uniform Commercial Code
FACTS: A contract calls for a software vendor (i) to license a copy of its standard off-theshelf “enterprise” software to the customer,
and (ii) to allow the customer to call for telephone support, if needed, for one year.
QUESTION: Is this K subject to the UCC?
Why or why not? (Hint: See Z&B p. 232-35)
The Uniform Commercial Code
QUESTION: Why might a customer want
UCC Article 2 to apply to a contract? (Hint:
See Z&B p. 235)
Dell Master Purchasing Agrmt (Z&B pp.
236 et seq.)
See the Word document
available at the Web page
End of class