82,891
edits
Entire agreement clause: Difference between revisions
no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 3: | Line 3: | ||
}}A [[boilerplate]] 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 “four corners” of the written agreement, and no other extraneous evidence, will be the tribunal’s only guide to divining its intention. | }}A [[boilerplate]] 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 “four corners” of the written agreement, and no other extraneous evidence, will be the tribunal’s only guide to divining its intention. | ||
[[Eagles of the law]] will say it reduces a certain amount of uncertainty, certainly, but at what cost? Legal expense, for one thing: a clause we imagine was meant to close the door on [[litigation]] has, all the same, managed to generate quite a lot of the stuff. | [[Eagles of the law]] will say it reduces a certain amount of [[uncertainty]], certainly, but at what cost? Legal ''expense'', for one thing: a clause we imagine was meant to close the door on [[litigation]] has, all the same, managed to generate quite a lot of the stuff. | ||
===[[Side letter]]s, [[amendment agreement]]s and [[master trading agreement]]s=== | ===[[Side letter]]s, [[amendment agreement]]s and [[master trading agreement]]s=== | ||
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 following ineluctable gravity down a path paved with the remains of men or women who were not prepared [[I'm not going to die in a ditch about it|to die in a ditch about them]], these too have ossified into [[boilerplate]]. | 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 following ineluctable gravity down a path paved with the remains of men or women who were not prepared [[I'm not going to die in a ditch about it|to die in a ditch about them]], these too have ossified into [[boilerplate]]. | ||
Another common yet curious habitat for an [[entire agreement]] clause is a [[master trading agreement]]. How exactly a framework agreement that only | Another common yet curious habitat for an [[entire agreement]] clause is a [[master trading agreement]]. How exactly a framework agreement that only means anything once amplified by a subsequent agreement, and has no economic impact if it is not, can possibly be “the entire agreement and understanding of the Parties with respect to its subject matter” is beyond the little brain of this bear, but yet {{icds}} and {{icmacds}}, among others, both heartily say it. | ||
===Are you feeling lucky?=== | ===Are you feeling lucky?=== | ||
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 | 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. Fat chance. It also presumes that, having done so, they will have successfully memorialised those terms in 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? | 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? | ||