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 13: | Line 13: | ||
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. | 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 — look, 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 | Now if the lawyers have indeed done so — look, 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 rather to double down on an enterprise you should already be regretting. If the merchants’ own discussions, captured in contemporaneous correspondence, cast 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. | ||
===What it really means=== | ===What it really means=== | ||
Since the bracing authority of {{casenote|Rock Advertising Limited|MWB Business Exchange Centres Limited}} it seems to this old fellow, that everything of merit an [[entire agreement]] clause sets out to do | Since the bracing authority of {{casenote|Rock Advertising Limited|MWB Business Exchange Centres Limited}} it seems to this old fellow, that everything of merit an [[entire agreement]] clause sets out to do is already covered: in hindsight. by the [[parol evidence]] rule; in prospect, by a “[[no oral modification]]” clause, if you are incautious enough to want one of those. | ||
===What’s in the box=== | ===What’s in the box=== | ||
| Line 29: | Line 29: | ||
===Tricks for ''les joueurs jeunes''=== | ===Tricks for ''les joueurs jeunes''=== | ||
*Would an [[entire agreement]] clause prevent a court [[Implied term|implying terms]] to give a [[contract]] [[business efficacy]]? No, said the Court of Appeal, rejecting the fatuous claim of a landlord in {{casenote|Hipwell|Szurek}} that an [[entire agreement]] clause in a lease contract that didn’t mention electrical wiring meant it wasn’t responsible for the maintenance and repair of the wiring, which proceeded to administer the tenant and customers | *Would an [[entire agreement]] clause prevent a court [[Implied term|implying terms]] to give a [[contract]] [[business efficacy]]? No, said the Court of Appeal, rejecting the fatuous claim of a landlord in {{casenote|Hipwell|Szurek}} that an [[entire agreement]] clause in a lease contract that didn’t mention electrical wiring meant it wasn’t responsible for the maintenance and repair of the wiring, which proceeded to administer the tenant, and her café’s customers, periodic electric shocks.<ref>I am not sure if they did actually get shocks, but it is fun to imagine.</ref> | ||
{{sa}} | {{sa}} | ||