Comments on: “To the Best of Its Knowledge” http://www.adamsdrafting.com/2007/04/22/best-of-its-knowledge/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc By: Ken Adams http://www.adamsdrafting.com/2007/04/22/best-of-its-knowledge/comment-page-1/#comment-3720 Ken Adams Mon, 23 Apr 2007 12:00:42 +0000 http://www.adamsdrafting.com/2007/04/22/best-of-its-knowledge/#comment-3720 Craig: I wouldn't use the introductory language you suggest: as a general matter, most representations aren't qualified by knowledge, and with respect to those representations the representing party's knowledge is irrelevant. If you want to put some teeth into the concept of knowledge, I'd accomplish that through the definition of "Knowledge." I'll probably blog about that at some point. By the way, you might want to say "accurate" instead of "true and accurate." Ken Craig: I wouldn’t use the introductory language you suggest: as a general matter, most representations aren’t qualified by knowledge, and with respect to those representations the representing party’s knowledge is irrelevant. If you want to put some teeth into the concept of knowledge, I’d accomplish that through the definition of “Knowledge.” I’ll probably blog about that at some point.

By the way, you might want to say “accurate” instead of “true and accurate.”

Ken

]]> By: Craig Tindall http://www.adamsdrafting.com/2007/04/22/best-of-its-knowledge/comment-page-1/#comment-3709 Craig Tindall Mon, 23 Apr 2007 05:59:26 +0000 http://www.adamsdrafting.com/2007/04/22/best-of-its-knowledge/#comment-3709 It has always seemed to me that this phrase “to the best of XXXX knowledge” is actually intended to imply an affirmative duty to investigation and thereby assure that the warranties and reps are true. But, as you point out, this is probably a very poor way to go about that objective. Nonetheless, when presented an already drafted contract with the “best of” in it, striking that phrase tends to raise a flag. Additionally, warranty and rep language (the context I’m think of at the moment) is generally written such that the prefacing statement has identical language for both parties. So, when the trust level is on the lower end of the acceptable scale and my client is confident of the warranty and reps provided, I’ve try to use something like the phrase: “XXXXX has made reasonable inquiry and secured the necessary knowledge to assure the following warranties and representation are true and accurate.” Offering the above as mutual language in lieu of “to the best of” usually works. The discussion gets more interesting when it doesn’t. It has always seemed to me that this phrase “to the best of XXXX knowledge” is actually intended to imply an affirmative duty to investigation and thereby assure that the warranties and reps are true. But, as you point out, this is probably a very poor way to go about that objective. Nonetheless, when presented an already drafted contract with the “best of” in it, striking that phrase tends to raise a flag. Additionally, warranty and rep language (the context I’m think of at the moment) is generally written such that the prefacing statement has identical language for both parties. So, when the trust level is on the lower end of the acceptable scale and my client is confident of the warranty and reps provided, I’ve try to use something like the phrase: “XXXXX has made reasonable inquiry and secured the necessary knowledge to assure the following warranties and representation are true and accurate.” Offering the above as mutual language in lieu of “to the best of” usually works. The discussion gets more interesting when it doesn’t.

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