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{{g}}A clause designed to buttress the time-honoured [[parol evidence]] rule, that if it is clear you meant to entirely reduce your agreement to writing, once you have done so the agreement, and no other extraneous evidence, will be the tribunal’s only guide to divining its intention.
{{g}}A clause designed to buttress the time-honoured [[parol evidence]] rule, that if it is clear you meant to entirely reduce your agreement to writing, once you have done so the agreement, and no other extraneous evidence, will be the tribunal’s only guide to divining its intention.
A “classic” [[ebntire agreement]] clause contains the following components of flannelry:
*A statement that the document (and, ahh, anncillary documents it refers to — you can see the unfolding problem here right?), represents the totality of the bargain.
*A [[disclaimer]] of all prior [[representations]], intimations and innuendos that might otherwise have induced entry into the contract.
*An exclusion of liability for any such [[Misrepresentation|misrepresentations]], innuendos etc (for the sort of [[chicken licken]] that might not trust its own [[disclaimer]], [[for the avoidance of doubt]].
*If you are really minded to go to town, a restriction limiting a party's remedies for misrepresentations — which you have just comprehensively [[Disclaimer|disclaimed]], remember — to contractual remedies only.
*A final, emotional concession, to prove that your heart is not entirely made of stone, allowing that this clause won’t excuse your outright [[fraud]]. Not, of course, that any contractual term ''could'' immunise a party who seeks to rely on it from its own fraud.


Reduces a certain amount of uncertainty, certainly, but at what cost?  
Reduces a certain amount of uncertainty, certainly, but at what cost?  
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Also a favourite “[[in your face]]” move of the kind of pedant you will inevitably encounter in a derivatives [[negotiation]]. Some been known to insert an [[entire agreement]] clause into an [[amendment agreement]]. No, you clot, by utter definition an amendment ''isn’t'' the entire agreement.
Also a favourite “[[in your face]]” move of the kind of pedant you will inevitably encounter in a derivatives [[negotiation]]. Some been known to insert an [[entire agreement]] clause into an [[amendment agreement]]. No, you clot, by utter definition an amendment ''isn’t'' the entire agreement.


But it creates a [[Mobius loop]]. For either your written agreement, on its face and by its own terms and in the parties’ shared expectation, ''is'' the final definitive record of your whole agreement “on the subject matter it purports to address” — now there’s some [[wieselspiele]] for the times — in which case, making a statement to that effect is superfluous, or it is not. Nothing you can write in the agreement will change that. If it turns out that
But it creates a [[Mobius loop]]. For either your written agreement, on its face and by its own terms and in the parties’ shared expectation, ''is'' the final definitive record of your whole agreement “on the subject matter it purports to address” — now there’s some [[wieselspiele]] for the times — in which case, making a statement to that effect is superfluous, or it is not. Nothing you can write in the agreement will change that.
 
Here are some practical consequences you might not have thought of
*Would an [[entire agreement]] clause prevent a court [[Implied term|implying terms]] to give a [[contract]] [[business efficacy]]? No, said the Court of Appeal, rejecting the fatuous claim of a landlord in {{cite|Hipwell|Szurek|2018|EWCA(Civ)|674}} that an [[entire agreement]] clause in a lease contract that didn’t mention electrical wiring meant it wasn’t responsible for the maintenance and repair of the wiring, which proceeded to administer the tenant and customers of her cafe periodic electric shocks.<ref>I am not sure if they did actually get shocks, but it is fun to imagine.</ref>
 


{{sa}}
{{sa}}
*Good [[client briefing]] on the topic from Ashurst [https://www.ashurst.com/en/news-and-insights/legal-updates/entire-agreement-clauses-handle-with-care/ here].
*[[In your face]]
*[[In your face]]
*{{isdaprov|Entire Agreement}} - {{isdama}}
*{{isdaprov|Entire Agreement}} - {{isdama}}
*{{gmslaprov|Entire agreement}} - {{gmsla}}
*{{gmslaprov|Entire agreement}} - {{gmsla}}
*{{gmraprov|Entire Agreement; Severability}} - {{gmra}}
*{{gmraprov|Entire Agreement; Severability}} - {{gmra}}

Revision as of 11:47, 28 April 2020

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A clause designed to buttress the time-honoured parol evidence rule, that if it is clear you meant to entirely reduce your agreement to writing, once you have done so the agreement, and no other extraneous evidence, will be the tribunal’s only guide to divining its intention.

A “classic” ebntire agreement clause contains the following components of flannelry:

  • A statement that the document (and, ahh, anncillary documents it refers to — you can see the unfolding problem here right?), represents the totality of the bargain.
  • A disclaimer of all prior representations, intimations and innuendos that might otherwise have induced entry into the contract.
  • An exclusion of liability for any such misrepresentations, innuendos etc (for the sort of chicken licken that might not trust its own disclaimer, for the avoidance of doubt.
  • If you are really minded to go to town, a restriction limiting a party's remedies for misrepresentations — which you have just comprehensively disclaimed, remember — to contractual remedies only.
  • A final, emotional concession, to prove that your heart is not entirely made of stone, allowing that this clause won’t excuse your outright fraud. Not, of course, that any contractual term could immunise a party who seeks to rely on it from its own fraud.

Reduces a certain amount of uncertainty, certainly, but at what cost?

Also a favourite “in your face” move of the kind of pedant you will inevitably encounter in a derivatives negotiation. Some been known to insert an entire agreement clause into an amendment agreement. No, you clot, by utter definition an amendment isn’t the entire agreement.

But it creates a Mobius loop. For either your written agreement, on its face and by its own terms and in the parties’ shared expectation, is the final definitive record of your whole agreement “on the subject matter it purports to address” — now there’s some wieselspiele for the times — in which case, making a statement to that effect is superfluous, or it is not. Nothing you can write in the agreement will change that.

Here are some practical consequences you might not have thought of

  • Would an entire agreement clause prevent a court implying terms to give a contract business efficacy? No, said the Court of Appeal, rejecting the fatuous claim of a landlord in Hipwell v Szurek [2018] EWCA(Civ) 674 that an entire agreement clause in a lease contract that didn’t mention electrical wiring meant it wasn’t responsible for the maintenance and repair of the wiring, which proceeded to administer the tenant and customers of her cafe periodic electric shocks.[1]


See also

  1. ↑ I am not sure if they did actually get shocks, but it is fun to imagine.
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