A couple weeks ago the following tweet was sent my way by @UtterlyMacabre:
Many IT Ks have an “assumptions” section that functions like a disclaimer. What category of contract language would you call this?
Shortly thereafter, @UtterlyMacabre disappeared from the Twitterverse. Too bad, because I thought that was a clever question.
Before disappearing, @UtterlyMacabre steered me to two statements of work (here and here) that did indeed contain a set of assumptions (at sections 3.6 and 2.2, respectively). But statements of work can be a hodge-podge of contract-type language mixed in with technical writing, and that’s the case with these two examples.
With pure categories-of-contract-language analysis in mind, I searched on EDGAR for instances of assumes that, as in “Acme assumes that WidgetCo will supply ….” I didn’t find a single one—the first 300 hits I looked at were non-contract flotsam and jetsam that had found its way onto EDGAR.
I’m relieved that I didn’t find any contract-language examples, because to assume the existence of something is a feature of analysis, and contracts ain’t about analysis. Instead of assuming that WidgetCo will supply something, you make it WidgetCo’s obligation to do so, or you make it a condition that it do so. Clear consequences flow from that; that’s not the case if you assume the existence of something.