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Template:Rep obligations binding: Difference between revisions
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Template:Rep obligations binding (view source)
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Now there was once a time the JC would have nodded along and said, yes, this is representation that transgresses the very first rule of [[representations and warranties]], which is that they are meant to be about matters of private, present ''[[fact]]'', known to the representor but not the representee, but about which the representee cares a lot, and which might colour its decision to enter the {{t|contract}} in the first place. | Now there was once a time the JC would have nodded along and said, yes, this is representation that transgresses the very first rule of [[representations and warranties]], which is that they are meant to be about matters of private, present ''[[fact]]'', known to the representor but not the representee, but about which the representee cares a lot, and which might colour its decision to enter the {{t|contract}} in the first place. | ||
It is true that the validity, enforceability and bindingness of a contract is a matter of law; but it is a pretty fundamental one | but the practical facts of the matter is that “obligations binding” are part of the commonplace, in boilerplate up and down the land, and while there are tendentious theoretical arguments to resist giving such a representation, there are absolutely no good practical ones. | ||
It is true that the validity, enforceability and bindingness of a contract is a matter of ''law''; but it is a pretty fundamental one that one should know about oneself without recourse to an external legal adviser. The gossamer latticework of international, and national regulation being what it is, one’s regulatory status, which parts of whose regulatory perimeter you fall in or out of ought to be clear enough to ''you'', but will be by no means obvious to your counterparty, and it is a sign of basic nose-breathing competence that you should know it, and be able to confidently say it to your counterpart should she ask about it. | |||
It in theory requires an ''[[legal opinion|opinion]]'', from one qualified to give one — and that is a reasonable conclusion for a third party to draw, if there really is no other way of getting to the bottom of the matter — but not a ''first'' party. First parties need to know what one they are and are not permitted do, so save themselves from winding up in the slammer, and it won’t do — as lawyers from as august an institution as [[Goldman|Goldman Sachs]] have been known to — to be unprepared to make that statement about their own firm, unsupported by written evidence from [[Sullivan and Cromwell]] to a counterparty who asks them. | It in theory requires an ''[[legal opinion|opinion]]'', from one qualified to give one — and that is a reasonable conclusion for a third party to draw, if there really is no other way of getting to the bottom of the matter — but not a ''first'' party. First parties need to know what one they are and are not permitted do, so save themselves from winding up in the slammer, and it won’t do — as lawyers from as august an institution as [[Goldman|Goldman Sachs]] have been known to — to be unprepared to make that statement about their own firm, unsupported by written evidence from [[Sullivan and Cromwell]] to a counterparty who asks them. | ||