Let’s look at “entire agreement” provisions. Or maybe you call them “merger” provisions. Or “integration” provisions. Whatever.
Guidance
Consider this boilerplate provision offered in Commercial Contracts: Strategies for Drafting and Negotiating (Vladimir R. Rossman & Morton Moskin eds., 2d ed. 2021) § 26.04[C]:
Entire Agreement. The Contract represents the entire and complete understanding of the parties with respect to its subject matter and supersedes all prior agreements and understandings between them with respect to its subject matter.
In addition to using the heading Entire Agreement, this text refers to this provision as a “merger or integration clause.”
But note that this provision expresses two concepts. The first concept is that the contract constitutes the entire understanding of the parties. The second is that the contract supersedes all prior agreements.
Of the labels used by this treatise, the label entire agreement can be applied to the first concept; the labels merger and integration can be applied to the second concept. (Regarding the meaning of merger and integration, Negotiating and Drafting Contract Boilerplate 566 (Tina Stark ed. 2003) refers to “the parties’ intent that all prior and contemporaneous negotiations and tentative agreements between them are ‘merger’ or ‘integrated’ into the written contract, thereby rendering that instrument the final and exclusive evidence of the agreement’s terms.”)
Like the first treatise referred to above, Negotiating and Drafting Contract Boilerplate also lumps these two concepts together in what it calls “a merger—or integration—provision”. If offers this as a typical example.
This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the mattesrs contained int his Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.
The first sentence expresses the “entire agreement” concept; the third sentence expresses the “merger” (or “integration”) concept; the second sentence expresses both, with complete pertaining to the “entire agreement” concept and exclusive pertainining to the “merger” (or “integration”) concept.
Likewise, the Thomson Reuters service Practical Law uses integration clause as a heading but says it’s “[a]lso known as a merger clause or an entire agreement clause.” According to Practical Law, here’s what the provision says:
● Contains the complete and final agreement between the parties.
● Supersedes any other oral or written agreements between the parties on the same subject matter.
Practice
What these three treatises say matches actual practice: addressing both concepts, whether in a single sentence or separate sentences, is in fact standard. Here’s a random example from EDGAR:
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
Redundancy
But there’s a problem with addressing both concepts. Doing so reflects a legalistic penchant for saying the same thing twice, with the two views representing the opposite sides of the same coin.
In other words, if I say that a contract constitutes the final agreement of the parties and I also say that the contract excludes other agreements, I’m saying the same thing twice.
By analogy, if I point to what’s on a kitchen counter and say, “This is what we’re having for dinner,” nothing is achieved by also pointing to your shopping bag and saying, “We’re not also having those Bagel Bites Three Cheese Frozen Pizzas!”
Last year I explored in this post another manifestation of this urge, redundant use of consent-to-jurisdiction provisions along with provisions establishing jurisdiction.
But you have to be alert to the possibility that what makes sense semantically isn’t relevant. For an example of that, see this 2011 post explaining that although a merger provision arguably subsumes the concept that the parties aren’t relying on any statements outside the contract, courts have held otherwise, so you should also include no-reliance language. (If you want more on no-reliance language, see this 2016 post.)
Conclusion [Updated at 1800 on 22 January 2021]
But I haven’t seen any indication that courts distinguish between the “merger” concept and the “entire agreement” concept, forcing you to use both. Instead, it appears that like commentators, they lump both concepts together.
I’m inclined not to express both concepts. Doing so adds unnecessary words. And redundancy is always pernicious, as it encourages contract parties, or courts, to dream up unintended meanings.
In fact, currently my own boilerplate addresses just the “entire agreement” concept:
This agreement constitutes the entire understanding between the parties regarding the subject matter of this agreement.
I can understand someone thinking it’s worth also addressing the “merger” concept, if only to avoid any discussion and any possibility of dispute. What the heck, I might end up there myself. The extra sentence isn’t a big deal, but if you’re going to add it, it would be best to do it knowingly, aware of the factors discussed in this post.
Can the 2nd sentence be read as a warning to readers (such as they read it) of the implications of the 1st sentence.
As you say, the 1st sentence should be enough. However, is there value in reminding the parties that some of the things they might think are part of the contract (e.g. a drunken promise in the pub, a sales pitch, whatever) won’t form part of the contract unless those items are written into it? Is there value in prodding the reader to check whether those promises are incorporated somewhere?
Sometimes I ask clients whether the other party has made any important promises verbally or in an e-mail, so I can check whether they have made it into the document.
Yes, you’re right. The question is whether saying the same thing two different ways adds enough value. I’m open to suggestions!
Ken:
I dunno. I’d feel safer with “entire and final.” It feels like there are two dimensions here. One is “horizontal” — there could be documents related matters that you want to exclude. Another is “vertical” — there are presumably prior versions of the same ultimate agreement. They feel different enough that I lean towards both adjectives. I recognize that the first ones are probably excluded by the phrase “regarding the subject matter of this agreement.” But I usually try to use something more descriptive than that, precisely because there can be collateral documents flying around that are not included in the agreement — and thus could be considered to be not part of the subject matter of the agreement. So I’d usually say something like “regarding the provision of services by vendor to customer.”
Chris
Two points:
1/ My inclination would be to say it once, as in your version, Ken, unless special circumstances call for saying it again another way. Whether the existence of prior drafts or related documents rises to the level of ‘special circumstances’ is a case-by-case judgment call. I’m leery of ‘entire and final’, as Chris suggests, on the general principle that you don’t want to make an opening for ‘if you use different words, you intend different things’, but the risk seems small; even if the drafter were understood to mean two things, they’re both in there, so who cares?
2/ A lingering point troubles me, mostly because I’m not sure whether it’s only linguistic or has practical implications:
Is the ‘agreement’ referred to in the boilerplate provision the tangible document itself or the intangible understanding of the parties, of which the document is merely physical evidence? Put otherwise, is the agreement the document or the deal?
We constantly speak as if the agreement is the document, but no one would agree that if the document burns up, the deal goes with it. So I think the document and the deal are different things. Yet the boilerplate says ‘this agreement *constitutes*, rather than *evidences*, the entire understanding of the parties’, etc.
Would it be better to say ‘this [tangible] instrument is the parties’ full and final expression of their [intangible] agreement concerning its subject matter’?
Would such language — and does your boilerplate provision — absolutely ban parol evidence of the parties’ ‘understanding’ (=’intent’)? Is that what the parties want? Is it a good idea to want that?