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Weasels can suck the yolk out of an egg without breaking it. According to Robert Claiborne’s book, Loose Cannons, Red Herrings, and Other Lost Metaphors, future president Theodore “Teddy” Roosevelt first used the term “weasel words” to refer to words that “suck all the meaning” out of other words when used in combination with them. Roosevelt was referring to President Woodrow Wilson’s proposal for “universal voluntary” military training. Roosevelt observed that military training could be either universal or voluntary, but not both. Corporate lawyers have a special talent for creating weasel words; an exhaustive list would be book-length. But in-house lawyers would do well to watch for the following phrases in drafts of legal documents. Notwithstanding the Foregoing: A red flag that signals to in-house counsel that he or she should carefully review the entire document one more time. Stated differently, “notwithstanding the foregoing” means contrary to what you just read in some specific way. Except as Otherwise Set Forth Herein: A variant of the previous expression, this provision is more nefarious because it requires in-house counsel to search the entire document to determine where the contradictions are. Subject to Board Approval: This term means “we really do not have a deal, even though we have signed a contract.” These weasel words are nothing more than an escape clause that allows a party to get out of a signed agreement without incurring liability. You should insist that the document include limitations on board approval that are time-based, and consider modifying the phrase with the words “such approval not to be unreasonably withheld.” This creates some additional ambiguity but may give you an argument later if the party required to get board approval acts in a capricious manner. Revocable Commitment: My personal favorite, a “revocable commitment” is meaningless. If it is a commitment, then how can it be revocable? If it is revocable, then how can it be a commitment? In truth, a revocable commitment is neither. Nonbinding Contract: This weasel expression is an invitation for litigation. Typically, the term “nonbinding contract” appears in a letter of intent. But what does it mean? In Texas, for example, a letter of intent may be binding and enforceable. Certain limited circumstances may justify a nonbinding expression of the parties’ intent, but as a general rule, you should not sign a document that contains these weasel words. Subject to Due Diligence: “Due diligence” means that the other party to an agreement gets to try to find all sorts of reasons why it does not have to abide by the terms of the agreement and that it has unfettered discretion to do so. Consider limitations on due diligence that limit the other party’s discretion and the time that the other party has to do this work. Subject to a Binding Financing Commitment: Another way of saying “we really do not have a deal.” The party seeking the financing likely will be able to control whether a binding commitment from a lender is forthcoming. Consider adding language to the document that limits the amount of time the other party has to obtain the commitment and otherwise restricts the other party’s ability to use these weasel words to escape the contract. Substantially Identical: Either a document is identical or it is not. The notion of “substantially identical” is like being a little pregnant. In All Material Respects: These weasel words are a variant of “substantially identical.” It is difficult to determine what this phrase really means because the notion of materiality is completely subjective.
Steven M. Zager is a partner at Akin Gump Strauss Hauer & Feld in Austin. His colleagues Chip Cowell and Anne Cohl Gravelle provided many of the weasel expressions described here.

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