In the wee hours I saw this post on LinkedIn by Olly Buxton, in which he says, “This from someone who has obtained a professional qualification dedicated to the clear, logical and precise use of the English Language.” By “This,” Olly is referring to the text in the following image:
This sentence is, um, deeply problematic on several levels. Although I’m working in the dark, not having the statements of fact in question, here’s what I think the drafter was trying to say:
3. Statements of Fact
Each party will be deemed to have made in this amendment the statements of fact that that party made in the Original Agreement, with all instances of “the date of this agreement” being deemed to refer to the date of this amendment and all other instances of “this agreement” being deemed to refer to the Original Agreement as amended by this amendment.
Can you improve on that?
Incidentally, this sort of arrangement won’t work if the original statements of fact refer to matters that are unlikely to have remained unchanged. For example, a list of contracts to which Acme was party on the date of the original agreement might well have changed by the time the amendment is signed. So this works best with statements of fact that say everything’s OK—for example, a “No Violation” statement of fact.
Hmmm. How about “Except as set forth in the attached [Exhibit A], each party repeats as of the date of this amendment all statements of fact it made in the Original Agreement, with references to “this agreement” in the Original Agreement deemed to mean the Original Agreement as amended by this amendment.”
My version relies on a legal fiction. I recognized that an alternative should be available and might be preferable, but I hit a road block.
The first question is, what category of contract language should your version use? If you’re making statements of fact, that’s language of declaration. If that’s the case, shouldn’t you say states that?
Or should it be language of performance, using hereby?
Well, since “repeats” just means “states again,” I consider that I’ve accomplished the first one. I actually considered throwing in a “hereby,” though in the end I wasn’t sure what that accomplished beyond the declaration. I always thought language of performance was in a sense the collapsing of an obligation with its fulfillment. Where the original agreement used a declaration, it seemed more appropriate to carry that forward.
For language of declaration, I’d want to stick with states that. Regarding language of performance, in MSCD 3.373 I recommend not using hereby with verbs of speaking, so I’m uncertain about saying hereby repeats. I’ll ponder this.
I think it adds something (readability, I guess) to indicate that the parties are making the same statements of fact that they made before, albeit with an appropriate amendment. How about “restates that” rather than “repeats”? It means the same thing and uses the same base verb as “states that.”
Even though I think it would read more naturally if one were to toss in “hereby,” I like to reserve that for self-executing provisions (e.g., “hereby assigns”) — or whatever term you use in the MSCD for that type of language. So I don’t think I’d do it. Or maybe I would. Depending on how I felt at the time.
I also wonder it if would make sense to redefine “Agreement” globally to mean the original Agreement as amended. But we don’t know the answer to that without the rest of the contract.
Although this comment is peripheral to the issue at hand, I also would not define an amendment to the original agreement as “Agreement”, unless I defined the original agreement as “Original Agreement”.
Curious — Why do we even need to say this in the first place? What would have been lost had we not stated what appears to be to be a default absent anything that had expressly disavowed the prior facts and so forth.
‘All statements of fact in the unamended agreement are effective as if stated at the point this amendment takes effect.’
I respectfully disagree that the first question is what category of contract language to use; the first question is always what one is trying to accomplish.
Here the goal appears to be to agree the point at which statements of fact ‘speak’.
I’m uncertain about the category, but my best guess is policy, like the statement of the point at which a contract takes effect or terminates.
Isn’t this clause a perfect illustration of the need for the severance (Edit: oops, severability) clause? I read the original. I read your explanation. I still think it’s gibberish. WTF is the drafting trying to establish?
The idea of making statements of fact again isn’t crazy. After all, it’s the gist of that feature of M&A, the bringdown condition.
I looked at the Tweet. Are you even sure there was both an agreement and an original agreement? The reference to an ‘Original Agreement’ is solely an implication from this thread. Just sayin’.