We ARE Trying.

It has been a busy first quarter for our clients, which means a busy time for us. One thing that has kept us hopping is the purchase or sale of businesses. Often, but not always, that takes the form of an asset sale. That means assets of the business are sold – not ownership of the business entity. 
As I was preparing one of the asset sales, I was looking at a prior asset purchase agreement. I wasn’t very far in when I came across this sentence: Seller shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to Purchaser, and Purchaser shall purchase from Seller, all of Seller’s right, title and interest in and to the following assets .

This is the type of sentence that often makes clients go cross-eyed. It is like we busted out a thesaurus for all the ways to say “sale.” Why on earth do we need to use seven different verbs to say, “I am selling X to you.”?

I could give you lots more words about why each word is different and the different nuances among each. But, really, it boils down to paranoia and trying to cover our clients’ butts as best we can. 
When a contract ends up in litigation, each word and punctuation mark is analyzed to death. What if one of those nuances matter in this particular case? And what if we didn’t put it in? Let’s be safe and put them all in every time!

But sometimes that kitchen sink approach doesn’t make sense. Clients often ask for simple contracts.  When I was clerking for Judge Dyke, he often reminded me that we aren’t Charles Dickens, so we are not paid by the word. We are, however, paid by the hour. The irony is the short or simple contracts often take more time. We have to think whether or not each word and comma matters. How does the deletion or inclusion impact the rest?

That means that often, when we are trying to balance a client’s request for a simple, inexpensive contract that will protect them, it can’t all happen easily. Synonyms get added to ensure coverage and less costs. Therefore, please forgive us for our thesaurus complex – it is coming from a good, valuable, positive, and favorable place.
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