Don’t write a contract that counts time in “business days” unless you’re sure of the answer

Christmas is an appropriate time to write about how lawyers use “business day” to measure time in a contract. We don’t often encounter problems when we measure long periods in days: for example, “Buyer has 30 days from receiving the survey to notify Seller of Buyer’s objections to the survey.” If the buyer receives the survey on April 16, the buyer has until May 16 to notify Seller of Buyer’s objections. Everyone can count to 30 when you’re counting every day.

Many contracts measure short periods in business days, for example, “Buyer has 5 business days from receiving the title report to notify Seller of Buyer’s objections to the title report. The buyer wants to measure the period in business days because the buyer might receive the title report on the Friday before a three-day holiday weekend, perhaps on December 22, 2017, and doesn’t want Saturday, Sunday, and Christmas Day (today!) to count against the review time.

To leave nothing to chance, some careful drafters provide a definition of “business day.” I’ve seen a definition of a business day as a day that the courts in Multnomah County are regularly open for business. I’ve also seen definitions of “business days” as days on which banks are open for business, a definition that got mushy 40 years ago when Fred Meyer Savings & Loan began to open its offices on Sundays.

Most days don’t trip us up. No one in the United States would seriously argue that December 25 is a business day, nor Thanksgiving, nor July 4, nor New Year’s Day.

But Oregon has one day that’s a trap for the careless drafter: Columbus Day.  Read more in the continuation about how Columbus Day bit the Oregon Department of Revenue in the pocketbook . . . .

The passive voice is to be avoided

In great literature, the passive voice may be used to good effect to convey immutable fate, actions of the invisible, or Kafkaesque bureaucracy.  Not so in business law.  If you won’t be submitting your contract for the Pulitzer Prize, then don’t use the passive voice when you’re writing it.  Compare “Rent payments that are not received by the 5th day of the month will incur a 5% late fee” with “If Landlord does not receive Tenant’s rent in full by the 5th day of the month, then Tenant will pay Landlord a late fee of 5% of the full amount of that month’s rent.”
Strive to be clear.  If you don’t understand your contract when you’re signing it, the jury won’t understand it when you have to sue on it.

Something is missing from our invoices

Eleven years ago when I first went into independent practice, I adopted a policy of not charging clients for routine postage or domestic long-distance tolls.  I reserved the the right to charge for postage if I had to do a mass mailing or send dozens of letters by certified mail. I intended to draw a contrast between Alterman Law Office (as the firm was then named) and the myriad of law firms that charge for client parking (we don’t), that pass through parking charges for their lawyers (we don’t), that make clients pay for dinner for lawyers who worked late (we don’t), and that bill for copying (we don’t, except for really large copying jobs), postage (we don’t, except for mass mailings), and the other nickels and dimes that take up the last page of the typical invoice from a law firm. You won’t find those sorts of charges on our invoices.

We light-heartedly describe our policy as “The post office doesn’t charge you for lawyers. Why does your lawyer charge you for postage?”