Accession

A much under-estimated trick, especially in the negotiation world. To exceed to a contract is to agree to be bound by the terms of an existing contract mutatis mutandis as if it applied to you, without all the tedious mucking about replicating it, formatting it, and generally having to produce a brand-new 300 page long document.

The basic principles of contract →Go uptown Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability Not contracts: Restitution — quasi-contract — quasi-agency Index: Click ᐅ to expand: Contract Tort Restitution Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

In modern investment management the same fellow may arrange similar contracts on behalf of a number of different funds, clients or subdivisions of itself, depending on how its investment management businesses set up. Notwithstanding that everyone knows it is all “between us girls”, the investment manager will, on the record, hotly deny this and insist, for the sake of optics, that each contract is utterly distinct, and that for example, Hackthorn Capital Partners III LLP cannot possibly know of or be in any way associated with the legal terms binding Hackthorn Capital Partners ’’IV’’ LLP, even though the directors, agents, depositories, portfolio managers, swap counterparties and brokers will be common in either case.

Most counterparties just have their poor ignited negotiators go through the tedious business of generating mountains of replica documents, with all their foibles, idiosyncrasies, pleasantries, and avoidance of doubt. As the contractual landscape passes through the vicissitudes of time it will inevitably require amendment, and the more different iterations of the Hackthorn Capital Partners fund there are, the greater the clerical job of keeping them all up-to-date will be.

Hence the idea of accession, to create a single set of master documents to which all the counterparties can “accede”, and agree to be bound by as they are from time to time amended, perhaps by countersignature for good order. This keeps the ongoing paper war at a minimum.

None the less the concept of accession seems to trouble certain people in the industry so the JC has devised the following analogy: imagine the scene from when Harry met Sally in the restaurant. To exceed to a contract is to say “I’ll have what she’s having”.