Vol. 31, No. 6
From Our Readers
From Our Readers
Editor’s Note: The following letter should be read in conjunction with The Scrivener in the March issue (at page 43), as well as this June issue (at page 65) and the July 2002 issue, which will discuss specific contract terms.
Regretfully, I was not able to respond [in time] to K. K. DuVivier’s request for feedback . . . in regard to her article appearing in the March Colorado Lawyer [at page 43]. Ms. DuVivier seems to imply that I advocate an approach which she refers to as a "gentlemen’s agreement." When I first started practicing law in Denver many, many years ago, you certainly could rely on a "gentlemen’s agreement" because if an attorney ever went back on his/her word, then every attorney in town knew not to deal with that individual. Unfortunately, with the influx of out-of-state attorneys not born of the western handshake custom of a "deal is a deal," this is no longer a custom on which one can realistically rely.
Ms. DuVivier cited one of the few changes—the original lease read, "At all times during the continuance of this lease, landlord shall . . ." The attorney for the tenant wanted to delete the word "continuance" and substitute the word "term." Webster’s Unabridged Dictionary defines "continuance" as "a holding on or remaining in a particular state or course of action; uninterrupted succession; a continuation or sequel." The question I pose —Was this really a necessary change? Is the attorney posturing for his client by showing his erudite command of the English language, and how much are these changes costing his client? Substantive changes are one thing. Change for the sake of a change is, in my humble opinion, "nit-picking," which is far different than a "gentlemen’s agreement." These requested changes may be inconsequential and not worth arguing about, but why does an attorney persist in making changes when they are inconsequential?
For example, a lease provided, "The landlord shall make all structural changes. . . ." Another provision, "All repair to blacktopping and striping shall be made by landlord." Tenant’s attorney requested the words "at landlord’s expense" be inserted after each obligation of the landlord. Webster’s Dictionary defines "made" as a past participle of "to make." If landlord has "to make" striping and blacktopping repairs, and landlord is required "to make" all structural repairs, under what legal theory would the tenant be required to pay for something that the landlord was required "to make"? Admittedly, these requested changes would not be objected to by the landlord, but why does an attorney take the time, effort, and expense to his client to request that language? If they have a case that says when landlord is required "to make" it means tenant pays, I’d like to see the case. I can’t believe any court would require tenant to pay for something that landlord is required "to make." What has happened to the rule of reason?
Stanton D. Rosenbaum,
We encourage letters about articles published, bar projects, and suggestions for improvements to the journal for consideration by The Colorado Lawyer Board of Editors. Some of these letters will be published in this space and/ or used for long-range planning for both the Colorado Bar Association and The Colorado Lawyer. We obtain express permission before publication from letter writers. Please let us know how you feel!
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