More Boilerplate Redundancy: Expressing Both the “Entire Agreement” Concept and the “Merger” (or “Integration”) Concept

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and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.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.

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.