Today’s column focuses on the U.S. Court of Appeals for the Second Circuit’s opinion in Law Debenture Trust Co. of New York v. Maverick Tube Corp.1 that considered custom and usage in the context of addressing whether contract language should be deemed ambiguous.
Before proceeding with that discussion, let me refer to a previous column,2 which noted that the decision of the Court of Appeals in IDT Corp. v. Tyco Group, S.A.R.L.3 may have announced a change in the law concerning the analysis of what binding effect, if any, is to be given to a preliminary agreement when the parties contemplated that they would thereafter prepare and execute a definitive agreement. In a footnote, the Court of Appeals stated that it did not find “useful” the Type I/Type II analysis first articulated in the 1987 federal court decision in Teacher’s Ins. and Annuity Assn. of Am. v. Tribune Co.4 that had become a template for analyzing preliminary agreements.
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