Conflicting Provisions: Seeking Examples

You’re drafting a contract, as you’re in the habit of doing. You include a waiver of jury trial, for whatever reason. And you make California law the governing law. Or maybe Georgia law.

Well, for purposes of trials in state court, courts in California and Georgia have held that pre-litigation waivers of jury trial are unenforceable. See Grafton Partners, L.P. v. Superior Court, 116 P.3d 479, 479 (Cal. 2005); Bank South, N.A. v. Howard, 444 S.E.2d 799, 799 (Ga. 1994).

I mention this because I’m interested in combinations of contract provisions that create conflicts. The simplest form of conflict is when the laws of a given jurisdiction say that something’s unenforceable, but the mechanism might be more subtle than that.

Do you have examples of conflicts?

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.