The Art of Drafting the Commercial Contract

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Overcome error and oversight when drafting and reviewing commercial contracts


“ The agreement must do more than just document the rights and obligations of the parties. It must embody the considerations that ‘induced’ the purchaser to purchase and the seller to sell the property or the assets that are the subject of the agreement.”

Barry D. Lipson


Broad language that’s open to interpretation - for example, “sole discretion” - is a common error in drafting commercial contracts. That infamous phrase carries an unfavourable history in common law decisions, and is entirely avoidable with guidance from The Art of Drafting the Commercial Contract. The precise wording you should be using to limit or expand the scope of a provision is among the many practical topics discussed in this new work by experienced practitioner and negotiator Barry D. Lipson. Draft clearer documents in less time Whether you’re drafting a corporate, real estate or other commercial contract, you’ll begin with time-saving precedents. Each aspect of the provisions is accompanied by expert analysis and commentary, along with ways to customize the clauses for your own purposes, and advice on overcoming common errors. With The Art of Drafting the Commercial Contract as your reference, you can draft clearer documents in less time, and spare your clients a potential dispute, if not the loss of the entire transaction.


“ No one cares about the Notice provision until one Party faxes an indemnity claim at 8:00 p.m. on the Friday of a long weekend to someone at the other Party who left at noon that day for two weeks’ vacation.”

Barry D. Lipson


Table of Contents

Part 1 – Basic Commentary

General Drafting Considerations

•Control the Drafting

•Be Precise

•The Agreement’s Skeleton


•Principles of Clear Writing

•Omission and Error Recognition

•Drafting and Good Faith

•Avoiding an Ambiguous Provision


The Structure and Content of a Contract

•Contracting Parties

•Definitions and Schedules

•Purchase Price

•Representations and Warranties



•Survival/Indemnity Provisions


Drafting Protective Provisions

•In Anticipation of the Purchaser’s Willful Default

•The Unlevel Playing Field

•The Use of the Words “Sole Discretion”

•A Purchaser’s Fraudulent Representation

•The Liability of the Purchaser, as Trustee


Part II – Pre-Contractural Agreements

Letters of Intent

•On Drafting Letters of Intent

•Specimen Letters of Intent

•Other Pre-Contractural Agreements


Part III – Corporate Share and Asset Acquisitions

•On Drafting Share and Asset Acquisition Agreements

•Corporate Share Acquisitions

•Corporate Asset Acquisitions

•Related Agreements


Part IV – Real Estate Acquisitions

Property Acquisition

•On Drafting Property Acquisition Agreements

•Property Acquisition Agreements (long/short forms)


Land Acquisition

•On Drafting Land Acquisition Agreements

•Land Acquisition Agreements


Practice Area:
Commercial Law


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