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Entire agreement clause: Difference between revisions
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===Are you feeling lucky?=== | ===Are you feeling lucky?=== | ||
But an [[entire agreement]] clause | But even where it is not by its own lights a self-contradiction, an [[entire agreement]] clause supposes that [[learned counsel]] have understood every commercial nuance and forensic contingency, even if their clients have not. It also presumes that, having done so, they will have successfully memorialised those terms in a prose that speaks with utmost clarity, and comprehensivity, to the [[bargain|commercial bargain]]. The [[JC]] knows a lot of lawyers and would urge caution against this assumption. | ||
Now if the lawyers have indeed done so — fat chance, but let’s just say — then there is surely nothing left to doubt, the parties will be happy, there will be no dispute, and all will be well in the world. But should the parties later find themselves at gunpoint, the legal agreement has ''already failed'' at this avowed intent. To now cast your lot with the [[legal eagles]] and whatever they did manage to confabulate is, it seems to this old codger, to double down on an enterprise you already know to have been regrettable. If the merchants’ own discussions, captured in contemporaneous correspondence, casts a different light upon the bargain, then wouldn’t that, rather than their advisers’ ''post facto'' magniloquence, be a better clue to a good 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 “[[with respect to its subject matter]]” — now there’s some [[wieselspiele]] for our 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. | 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 “[[with respect to its subject matter]]” — now there’s some [[wieselspiele]] for our 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. | ||