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Overview

In two comprehensive volumes, Commercial Contracts: Strategies for Drafting and Negotiating, Second Edition presents the insights and guidance of over 30 leading specialists, all experts in their fields. These noted authorities examine the growing influence of New York law on multi-jurisdictional transactions, discuss the general expectations of parties to commercial transactions, and identify critical issues that drafters and litigators need to consider when dealing with different types of agreements, from joint ventures and strategic alliances to government contracts, from employment agreements to shareholder agreements, and many others.

By putting the expert analysis, practice tips and illustrative forms needed to draft or negotiate a contract in just hours within easy reach, Commercial Contracts: Strategies for Drafting and Negotiating makes laboring over voluminous contract law references a thing of the past.

Each chapter focuses on a specific aspect of contract law or a particular kind of commercial agreement. The reference provides an extensive array of time-saving drafting tools for preparing transaction documents or closing the deal more quickly and with less effort, including:

In-depth drafting suggestions and sample documents
Practical guidance from seasoned experts in each area of the law
Quotes from rulings, citations to cases, law reviews and other works
Detailed checklists and forms
Extracts from relevant laws and regulations
Case and statutory references
And much more

Note: Online subscriptions are for three-month periods.

VOLUME 1

Chapter 1. MILESTONES: HOW NEW YORK LAW BECAME AMERICA’S DEFINING LAW OF CONTRACT

1.01 Scope Note
1.02 The Business/Legal Continuum: How Contracts and Commerce Came to Define New York as the Ne Plus Ultra Marketplace and Commercial Legal System
1.03 Past as Prologue? New York’s Future as the Capital of Capital

Chapter 2. FORM AND FUNCTION OF A CONTRACT

2.01 Scope Note
2.02 Drafting Strategies
2.03 Substantive Role of Contract Provisions
2.04 Certain Drafting Issues

Chapter 3. ENFORCEMENT ISSUES PRESENTED BY A FEW COMMON CONTRACT PROVISIONS

3.01 Scope Note
3.02 Representations and Warranties
3.03 The “Material Adverse Change” Clause
3.04 Indemnification Clauses and Cost Shifting
3.05 The Arbitration Clause

Chapter 4. CONTRACTS AND CHOICE OF LAW IN NEW YORK

4.01 Scope Note
4.02 Introduction
4.03 General Principles
4.04 Special Clauses, Rules and Statutes
4.05 Drafting the Choice of Law Clause

Chapter 5. THE ARBITRATION CLAUSE

5.01 Scope Note
5.02 Choosing between Arbitration and Litigation
5.03 Choosing the Kind of Arbitration: Administered versus Non-administered Arbitration
5.04 Drafting an Effective Arbitration Agreement
5.05 Negotiation or Mediation as a PreCondition to Resort to Arbitration
5.06 Special Considerations for Multiparty Contracts
5.07 Special Considerations for Related Contracts
5.08 Special Considerations for International Contracts
5.09 Checklist for Drafting the Arbitration Clause

Chapter 6. INTERNATIONAL AGREEMENTS: THE APPLICATION OF A LAW OTHER THAN THE LAW STIPULATED IN THE AGREEMENT

6.01 Scope Note
6.02 Lex Fori and the Validity of the Choice of Law Clause
6.03 The Internal Affairs Doctrine
6.04 Foreign Governing Law and Public Policy of the Forum
6.05 Governing Law and the Public Policy of a Third Country
6.06 Foreign Bankruptcy Proceedings
6.07 The Act of State Doctrine
6.08 Performance in a Foreign Currency and Lex Monetae
6.09 Renvoi and Mandatory Conflict of Laws Rules
6.10 International Comity
6.11 Governing Law Clauses Excluding Principles of Conflict of Laws
6.12 Waiver of Sovereign Immunity
6.13 Legal Opinions and International Agreements

Chapter 7. THIRD-PARTY BENEFICIARIES

7.01 Scope Note
7.02 Original Common Law Rule Versus Modern Law Test
7.03 Defenses to Enforcement by Third-Party Beneficiaries
7.04 Termination or Variation of Third-Party Beneficiary’s Rights
7.05 Intent-to-Benefit Test as Applied to Various Common Settings
7.06 Drafting with an Eye to the Law of Third-Party Standing
7.07 Summary

Chapter 8. CHALLENGES TO FORMATION AND PERFORMANCE

8.01 Scope Note
8.02 Failure of Conditions
8.03 Anticipatory Repudiation
8.04 Fraud/Misrepresentation
8.05 Duress
8.06 Contracts of Adhesion
8.07 Illegality
8.08 Drafting to Avoid Disputes

Chapter 9. EXCUSE DOCTRINES

9.01 Scope Note
9.02 Contract Law
9.03 Considerations in Approaching Contract Negotiation and Drafting
9.04 Excuse Doctrines
9.05 Characteristic Problems and Drafting Approaches
9.06 Checklist of Excuse Doctrine Affirmative Defense Allegations

Chapter 10. RESERVED

Chapter 11. EQUITABLE RELIEF

11.01 Scope Note
11.02 Equitable Remedies
11.03 Equitable Defenses and Counterclaims
11.04 The Implied Covenant of Good Faith and Fair Dealing
11.05 Application to Particular Commercial Contracts
11.06 Effect of Certain Clauses
11.07 Conclusion

Chapter 12. CONTRACT INTERPRETATION AND SUPPLEMENTATION

12.01 Scope Note
12.02 Preliminary Considerations
12.03 Implied Duties
12.04 Rules in Aid of Interpretation
12.05 Pitfall Avoidance
12.06 Clarity of Expression

Chapter 13. TORTIOUS INTERFERENCE WITH CONTRACT

13.01 Scope Note
13.02 Historical Background
13.03 Interference with Existing Contractual Relations
13.04 Interference with Business Relations
13.05 Affirmative Defenses
13.06 Statute of Limitations

Chapter 14. RESERVED

Chapter 15. LETTERS OF INTENT

15.01 Scope Note
15.02 Preliminary Considerations, Strategies, and Objectives
15.03 Disclosure Obligations
15.04 Binding Nature of Letter of Intent
15.05 Negotiating and Drafting Points
15.06 Sample Letter of Intent and Commentary—Nonbinding Provisions
15.07 Sample Letter of Intent and Commentary—Binding Provisions

Chapter 16. UNSECURED BANK CREDIT AGREEMENTS

16.01 Scope Note
16.02 Objectives and Concerns of the Parties: Financing Strategies
16.03 Pre-Loan Steps, or “Let’s Make a Deal”
16.04 Final Documentation—Typical Terms
16.05 Ranking of Debt: Subordinated Debt Versus Senior Debt
16.06 Summary of Practice Pointers
16.07 Summary
16.08 Appendix A—Form of Unsecured Bank Credit Agreement

Chapter 17. AGREEMENTS FOR SALE OF A BUSINESS

17.01 Scope Note
17.02 Objectives and Concerns of the Parties to the Transactions: Strategies for Negotiation of the Agreement
17.03 General Drafting Considerations
17.04 Forms

Chapter 18. JOINT VENTURE AGREEMENTS

18.01 Introduction
18.02 Venture Objectives
18.03 Choice of Entity
18.04 Regulatory Concerns
18.05 International Joint Ventures
18.06 Forms of Joint Venture Documents

VOLUME 2

Chapter 19. SHAREHOLDERS’ AGREEMENTS

19.01 Scope Note
19.02 Objectives and Concerns of the Parties; Purposes of the Agreement
19.03 Illustrative Clauses

Chapter 20. DESIGN AND CONSTRUCTION CONTRACTS

20.01 Scope Note
20.02 Choosing the Proper Delivery System for the Project
20.03 Pricing the Construction Project
20.04 The Standardized Forms
20.05 Owner-Architect Agreements
20.06 Owner-Contractor Agreements
20.07 Design-Build: Special Contract Issues
20.08 Integrated Project Delivery: Special Contract Issues
20.09 Building Information Modeling (BIM): Special Contract Issues
20.10 Green Building: Special Contract Issues
20.11 Insurance Considerations for the Construction Project
20.12 Dispute Resolution in the Construction Process
20.13 Glossary of Construction Terms
20.14 Contract Document Sources

Chapter 21. FRANCHISE AGREEMENTS

21.01 Introduction
21.02 The Foundation for Franchising
21.03 Understanding Franchising as a Regulated Relationship
21.04 The Mechanics of the Registration Process
21.05 Understanding Different Types of Franchise Arrangements and Contracts
21.06 Discussion of Illustrative Franchise Agreement Clauses

Chapter 22. EMPLOYMENT, CONSULTING, AND SEVERANCE AGREEMENTS

22.01 Scope Note
22.02 Glossary
22.03 Employment Agreements
22.04 Consulting/Independent Contractor Agreements
22.05 Severance Agreements
22.06 Appendices: Forms

Chapter 23. MORTGAGES IN BUSINESS TRANSACTIONS

23.01 Scope Note
23.02 Overview of Mortgages
23.03 Understanding the Real Estate
23.04 Lender’s Basic Agenda in Preparing a Mortgage: The Starting Point
23.05 Negotiating a Mortgage
23.06 Common Substantive Problems and Issues
23.07 Title Insurance
23.08 State-Specific Problems
23.09 Opinions of Borrower’s Counsel
23.10 Mortgage Substitutes and Shortcuts
23.11 Model Mortgage
23.12 Model Opinion of Local Counsel
23.13 Checklist of Additional State Law Issues
23.14 Real Estate Security Process Checklist

Chapter 24. LEASING TRANSACTIONS

24.01 Scope Note
24.02 Objectives and Concerns of the Parties
24.03 Strategies for Real Estate Lease Negotiations
24.04 Brokers’ Functions, Brokerage Agreements, and Entitlement to Fee
24.05 Primary Lease Clauses
24.06 Other Important Lease Clauses
24.07 Summary of Practice Pointers

Chapter 25. MASTER AGREEMENTS FOR OVER-THE-COUNTER DERIVATIVES

25.01 Scope Note
25.02 General Criteria for OTC Derivative Transactions
25.03 Bankruptcy Code Safe Harbor
25.04 The ISDA Master Agreement and Schedule

Chapter 26. AGREEMENTS FOR THE SALE OF GOODS

26.01 Scope Note
26.02 The Reach of Article 2: What Constitutes “Transactions in Goods”?
26.03 The Process of Contract Formation
26.04 Contract Construction Under Article 2
26.05 Seller’s Warranties
26.06 Drafting Effective Disclaimers and Limiting Remedy Clauses
26.07 Risk of Loss
26.08 Sample Sale of Goods Agreement

Chapter 27. GOVERNMENT CONTRACTS

27.01 Scope Note
27.02 Comparison to Commercial Contracting
27.03 Socioeconomic Considerations
27.04 Basic Considerations of Government Contracts
27.05 The Federal Acquisition Process
27.06 Federal Contract Terms and Conditions: Noncommercial Item Contracts
27.07 Commercial Item Contracting
27.08 Standard FAR Solicitation Provisions and Contract Clauses
27.09 Standard FAR Forms
27.10 Glossary of Acronyms

Chapter 28. SETTLEMENT AND RELEASE

28.01 Scope Note
28.02 Creating a Valid Settlement Agreement or Release
28.03 Construction and Operation of Settlements and Releases
28.04 Settling with Joint Wrongdoers
28.05 Grounds for Invalidation
28.06 Settlement of Arbitrations
28.07 Suggested Language

Table of Cases

Table of Statutes

Index

Overview

Table Of Contents