Top 10 Hors d’oeuvres for Contracts Aficionados


It’s that time of year … time for bloggers to put together a list of their top posts as the new year approaches. Well, I’m happy to get ahead of the curve and serve as the antipasto — the hors d’oeuvre, the aperitif, the opening act — for the more substantial bloggers among us who’ll soon be serving up their best dishes of the year gone by.

It’s been a fantastic year as I (finally) reached my 100th post, met new interwebs friends, and had great conversations with contracts aficionados and law business enthusiasts on this blog and others. I’m looking forward to blogging in 2013.

1. Battle of the Forms Explained (Using a Few Short Words)

In this primer on UCC 2-207’s battle of the forms, I discuss the common-law approach to mis-matched offers and acceptances that result from the use of pre-printed contract forms, as well as the solution offered by article 2 of the Uniform Commercial Code. The post comes complete with a handy flowchart to help solve battle-of-the-forms problems (but see the comments on use of the chart). Like cheese, this post gets better with time as Google serves it up more often as time goes by. In the new year I plan to do some pieces on specific battle of the forms issues and include exercises and real-life examples.

2. The Reading List: China Law Blog

This is a review of some of my favorite posts from an excellent commercial law blog. Even if your day job doesn’t involve working with China contracts, the posts I highlight in my review of the China Law Blog provide excellent information for the general commercial attorney and contracts professional. Unlike the battle of the forms post, the traffic to this post spiked early in the year immediately after publication, driven partly by Stumbleupon and partly by Dan Harris’s surprising reaction on the China Law Blog.

3. Liquidated Damages Provisions Can Be Your Friend, But Don’t Overreach

In this post, which was inspired by a piece on the China Law Blog discussing the role of liquidated damages provisions in China contracts, I explain what liquidated damages provisions are and provide some examples. I also discuss a case in which the court refused to enforce a liquidated damages provision because it found that the clause was a penalty. This is another post that is favored by Google and that is one of the blog’s five most-read posts pretty much every day.

4. A Couple Tips for Young Lawyers

I’ve always enjoyed spending time with law students and young lawyers, so when Ken Adams did a piece on his blog about a young lawyer asking for advice, I couldn’t help but chime in. My advice in a nutshell: be a problem solver, have a sense of proportionality, invest in your skills from the beginning, know that things are a changing, and remember that you’re not more important than other people.

5. Excellent Law Firm Piece Explaining Indirect Damages

This is probably the shortest piece on my blog. It merely points to a great article on Mark Anderson’s law firm website. But a year after it was published, it still receives a lot of traffic.

6. The Law of Stuff Isn’t the Same as the Law of Services

In this piece I discuss the law that governs contracts for services — the common law — and the law that governs stuff — article 2 of the Uniform Commercial Code. The two bodies of law aren’t the same and it’s important to keep that in mind, especially when contracting informally via purchase orders.

7. Contracts Quiz: Is This Email Settlement Binding?

Some of the most interesting issues these days involve electronic contracting. Everyone routinely negotiates contracts via email, so cases involving email contracting are especially interesting, particularly when there’s a controversy over whether an email exchange formed a binding contract with respect to an abandoned deal. This post discusses just such a case.

8. Missouri State Contract Cases 2012 (Part 02): Punitive Damages for Conspiracy to Breach a Contract

It’s always disturbing to read a case where liability is found under a tort theory in a dispute over performance under a contract. Torts introduce such wildcards as punitive damages, as was the case in the dispute discussed in this post. The behavior was less than forthright, but should it be punished? I’ll let you decide.

9. Electronic Confidential Information: It’s Indestructible

Most nondisclosure agreements require the return or destruction of confidential information at the end of the agreement. But the stuff’s more durable than cockroaches in an apocalypse, so the typical requirement is impossible to comply with. But does it really matter?

10. Can the Crowd Produce a Decent Contract?

One of the fun conversation topics this year has been whether crowdsourcing contract language is feasible. This post strikes a hopeful note that someone will figure out how to harness the power of the crowd for the benefit of contracts aficionados and business people everywhere.

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