Comments on: Using “States” Instead of “Represents and Warrants”

By: Ken Adams

Ken Adams — Thu, 14 May 2009 14:29:32 +0000

Paule: Attest means the same thing as witness; see MSCD 4.41. And regarding certify, see MSCD 12.36. Again, there's no magic in what verb you use: its only function is to say, Hey, what follows is a factual assertion. For me, the path of least resistance is represents. And I hope MSCD will serve to weaken resistance to that approach. Ken

By: Paule Desautels

Paule Desautels — Thu, 14 May 2009 14:22:24 +0000

In French, I use “attester” as recommended by Gilles Thibault, author of the templates “Formulaire de droit commercial”. I’m of the opinion that the Civil Code provisions using “warranty” would apply just the same, especially since “to warrant” is a synonym of “to attest” – at least in French. I have been wondering about “attest” or “certify” in English. Could these be alternatives? (I now use “represent” and much to my surprise, have not been asked to revert back to “represent and warrant” – at least not for the past few months.)

By: Ken Adams

Ken Adams — Thu, 14 May 2009 01:59:42 +0000

Anonymous: You begin your comment by stating that a warranty is a guarantee. What does that mean? What are the implications? The answer is, Who knows?

In the U.S., the law is clear: what verb you use to introduce a factual assertion doesn’t have implications for remedies. You might find of interest the analysis in MSCD.

That said, I’m not advocating that one use states, but from a practical perspective it would do the job fine. If Acme “states” that it’s in good standing in Delaware, it’s clear that it’s making a factual assertion. That’s all that’s required.

Ken

By: Ken Adams

Ken Adams — Thu, 14 May 2009 01:33:56 +0000

Kevin: I like déclarer: those drafting contracts in French should be grateful for that simplicity. But as for represents and warrants, I'll refrain from repeating the argument laid out in MSCD, other than noting that from a semantic perspective the phrase is hopelessly buggered: I don't think anyone can say with confidence what it means. Abandoning it in favor of represents doesn't represent an innovation so much as a flight to coherence. Ken

By: Anonymous

Anonymous — Thu, 14 May 2009 01:23:32 +0000

I want the language “warrant” – a “warranty” is a guarantee. In this case, http://wiki.patracer.com/wiki/uploads/e/ee/2008-1462_SJ_Order.pdf, the court found there was not a breach of the license, but a breach of the warranty clause. I query whether saying “I state” would have carried the same sense of promise of truthfulness on the part of the entity giving the warranty.

By: Kevin Kyte

Kevin Kyte — Thu, 14 May 2009 00:54:53 +0000

Ken:

I can “state”, from a Quebec Civil Law perspective that “state” has no civil law significance. The Civil Code uses “warrants” for legal warranties (in French, it is “garantir”). In English, we use “represents and warrants”, even though I am not aware of any civil law distinction between the two. In French agreements, we say “declare” which I guess could be translated as “states” (but could also be translated as “declare”!!) . From a plain English perspective, “states” sounds very neutral. I can “state” that I am 9 feet tall, but I am not sure that that would attract the same responsibility as warranting (or representing) that I am 9 feet tall. I suspect that a judge would apply the common intention of the parties, and hold me liable any way (if this statement caused damages, etc.), but why take a chance.

Call me a luddite, but I will stick with represents and warrants because I know a judge will know what I meant. I will let some else take the lead on this innovation!

Kevin