“Confirms”

You see confirms used to introduce statements of fact in a contract. Here are two examples from EDGAR:

Each Loan Party (i) confirms that prior to, as of, during and following the funding of the Commitment, each Loan Party was not, and continues not to be, “insolvent” as that term is defined in Section 101(32) of the United States Bankruptcy Code, … .

Each party hereto hereby acknowledges and confirms that (i) no director, officer, employee or limited partner of the Borrower (each an “Exculpated Person”) shall be personally liable for any obligation or liability of the Borrower under this Agreement or any other Loan Document … .

MSCD 3.299 says that confirms carries “unnecessary rhetorical baggage.” That’s because confirms implies that it had previously been suggested that the essence of the statement of fact in question was true. That backstory is unhelpful: all that matters is accuracy of a statement of fact when it’s made.

What should you use instead of confirms? To open that can of worms, see MSCD 3.273. Or instead, start here or use the search function of this blog to search for “represents and warrants.”

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.