Guilty! Ruminations and its author have done this, though we’ve long been conscious of its flaws. What is “this”? It is that we’ve criticized documents prepared by others when we “weren’t there.” Before we proceed with today’s rant, a small clarification is in order. There will be no apology for our pointing out unnecessarily vague or ambiguous language. In fact, we think there is a place for intentional ambiguity and remain firmly behind the thoughts we expressed seven years ago in a piece titled: The Artful Use of Intentional Ambiguity in Document Drafting. It can be seen by clicking: HERE. What we are pleading guilty to is to the crime of criticizing others based on business terms that have included or omitted from their documents. Often, that’s the wrong thing to do. Let the ones among us, those who have not done this, throw the first stone.
Experience and intellect qualify us to analyze a lease or purchase agreement or loan document or whatever. Those qualify us to question why some things have been included and others omitted. We are not alone. Many, many readers (and non-readers) of Ruminations are similarly or even better qualified. But, having the ability to do so doesn’t mean we should be doing so. Why do we feel that way? [Read more…]
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We’ve stolen our title from an article (or possibly it is a blog piece) dealing with the same concept but in a completely different field of endeavor. It wasn’t even about anything objective. But, its title and subject matter got us thinking about just what its author was discussing: that is “who should bear the risk?” We wrote about this a long time ago and, at the time, thought we had written a definitive piece on the subject. Now, we know we had not. Neither will be today’s posting. [For those intent on visiting the past, here’s a link to our 2013 rambling: 
We’ve been doing Ruminations since 2011 and yet this is the first time we’ve deliberately done a multi-topic blog posting. Generally, when we choose a topic (400+ thus far) we dig in and treat(?) our readers to several pages of our ramblings. That approach has precluded our covering simple or easily contained topics, ones undeserving of deep drilling down. So, today, for the first time (but, perhaps not the last), we present a little of this and a little of that.
Last week, we wrote about the need for competence when it comes to crafting deal documents such as a lease. Among the over 400 Ruminations prior blog postings are more than a dozen dealing with insurance. This week, we get to combine the two subjects thanks to a December 5, 2018 unpublished ruling from a New Jersey appeals court resolving an insurance dispute. The facts are mundane, but provide a roadmap for us today.
Some concepts are so simple that we never think that we’d have to point them out. But, today, one of those concepts occurred to us, and we’d like to share it with our readers. Here it is:
New York State has a law, New York General Business Law Section 518. It deals with how a merchant may post a pricing sign when there are two prices for the same goods – one if paying with cash, and one when paying with a credit (debit) card. This law raised a First Amendment issue, one that worked its way up to the United States Supreme Court and back to New York State courts. So, why will it be discussed on a real property blog site? It is because Ruminations is fascinated, some might say obsessed, with how a literal reading of text doesn’t always turn out to be its applicable meaning. So, it doesn’t matter whether the issue comes up in a contract or a law. Courts don’t have two sets of rules. Yes, some rules may not apply when looking at one category or the other, such as the use of “legislative history” when looking at a law. But, the analogous rule for interpreting words in an agreement is the parties’ “course of conduct” or “negotiation history.” In every case, the goal is the same: find the intent behind the text. 
Today’s blog posting will reflect that not much thought has gone into writing it. That’s because we realized that it wasn’t going to get measurably better if we picked through it, questioning every phrase, discussing each element with friends and family, and then, after hearing everyone’s “free” advice,” starting all over again. You see, we’ve seen too many others do that with letters of intent (aka: deal sheets).
It is the rare retail project that is unencumbered by exclusive use rights granted by a landlord to one or more tenants. While that may not have been as true in the distant past, this is now the “rule of the game.” What is more, this concept has begun to spill over into the office leasing environment.
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