From time to time, I like to catch up with the other contracts blogs and podcasts. There aren’t that many, and recently, worlds have collided, as Dave Hoffman, of Contracts Empire fame appeared on Kim Krawiec‘s Taboo Trades Podcast. That makes life a bit easier. It’s all about Dave.
The Taboo Trades episode was about Dave’s work on NILs as non-compete agreements about which we already blogged here, as well as some related work he has done. As usual, the University of Virginia law students have terrific questions for which Dave has terrific answers. I recommend that you give it a listen.
Meanwhile, Dave has posted a bunch of new content on his own Substack, mostly still unpacking the data he has gathered on Philadelphia leases but also with some echoes of the recent work by Stephen Choi, Mitu Gulati, and Robert Scott, Contract Hazards: Lawyers and their Landmines.
Last month, he posted about typos in M&A agreements. The agreements are relatively clean, but they are long and so they contain, on average, about three dozen errors. And we can learn something about the drafting process from the nature of the errors. For example, he found the same (trivial, non-substantive) error in 438 different agreements. The error was corrected in only 28 agreements. On the whole, it is hard to catch all of the errors and perhaps there is some rational apathy here, as the mistakes are rarely what craters a deal or drives litigation.
Since my last roundup, Dave has also posted three more pieces drawing on his research into leases.
There’s this Substack about why leases are filled with unenforceable terms.
Then there’s this Substack about how sticky boilerplate terms are, drawing on the same data set of leases. They are, as it turns out, much less sticky than I would have guessed, with 95% of leases indicating some deviation from the form terms. The details are fascinating. You should have a look!
Finally, there is this call for tenant advocates to draft model leases.
It’s an impressive body of work, and I encourage people to go straight to the source.
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