Entire agreement clause: Difference between revisions

{{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.

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 lesser spotted [[legal eagle]]s, apparently struggling with the basic essence of the idea, have even inserted [[entire agreement]] clauses into arrangements which are patently nothing of the sort — [[amendment agreement]]s and [[side letter]]s, for example — and these, by following ineluctable gravity down a path in whose adjoining [[I'm not going to die in a ditch about it|ditches]] and upon whose surrounding hills lie the remains of no men or women who were prepared [[I'm not going to die in a ditch about it|to die in or on them]]', they have ossified into standard [[boilerplate]].  

But an [[entire agreement]] It suggests the [[learned counsel]] have understood every commercial nuance and forensic contingency, even if their clients have not. If also presumes that, having done so, between them they will have successfully memorialised those terms in a prose that speaks with utmost clarity to the commercial bargain. The [[JC]] knows a lot of lawyers and would urge caution against this assumption. If they have done so — fat chance, but let’s just say — then there is surely nothing to be left to doubt, the parties will be happy, there will be no dispute, and all will be well in the world. But if the parties find themselves later at gunpoint, it is safe to say the legal agreement has already failed at its avowed intent. To now cast your lot with whatever the [[legal eagles]] did confabulate is, it seems to this old codger, to double down on an enterprise you already no to have been regrettable. If it transpires that the merchants own discussions, captured in contemporaneous correspondence, suggests a different agreement, then wouldn’t that, rather than the post facto perorations of their advisers, be a better judge of a fair resolution?

It also creates a [[Möbius loop]]. For either your written agreement, on its face, by its own terms and within 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, your statement to that effect is not needed, or (as the Court of Appeal found in {{cite|Hipwell|Szurek|2018|EWCA(Civ)|674}} it is not, in which case the wording won’t save you. If something that goes without saying, indeed, ''went'' without saying, an [[entire agreement]] clause won’t stop it, as it were, still ''going''. Nothing you can write in the agreement will change that.