Last year I wrote in this blog post about “elegant variation” across the contracts universe in how one says you have to keep confidential information to yourself.
In the same spirit, consider these different ways of requiring that amendments be in writing:
- [To be effective,] Any amendment to this agreement must be in writing.
- An amendment of this agreement will be effective only if it is in writing.
- No amendment of this agreement will be effective unless it is in writing.
- The parties may amend this agreement only in writing.
- The parties may not amend this agreement except in writing.
- This agreement may not be amended orally.
Thanks, but that’s more than we need. Me, I opt for No. 1, or rather the version of No. 1 with the stuff in brackets at the front: that makes it clear you’re expressing a condition. (In “categories of contract language” speak, No. 1 with the bracketed stuff is a condition expressed using language of obligation.) Without the stuff in brackets, you could read No. 1 (particularly if it’s used with shall instead of must, which is often the case) as if it’s an obligation, leading to a remedy for breach if someone amends other than in writing. That wouldn’t make sense.
I also opt for No. 2, which expresses a condition using language of policy. The only difference between No. 2 and No. 3 is that No. 2 is the positive version and No. 3 is the negative version. (You know me, Mr. Accentuate the Positive!)
No. 4 and No. 5 are positive and negative versions that share the same defect: they suggest that if you exceed the discretion by amending orally, you’ll be in breach.
No. 6 expresses the obverse of requiring that amendments be in writing. That’s obtuse.
The elegant variation doesn’t end there—drafters might use alternatives to express a given component of one of the above alternatives. For example, it’s easy to find examples that use shall where the above examples use may. And a sentence might use one or more of the following:
- amendment
- variation
- modification
- change
All this variety does no one any good. How do you fix it? With document assembly plus strong editorial control. And by “strong editorial control,” I mean MSCD.
Ever actually seen a breach claim for breaking a written-amendments rule of a contract? Which party would be breaching? Amendments take two.
More importantly: if the substance is the same, and the terms are that short, who cares? Shouldn’t we be more worried about whether those terms are enforceable in the context of the contract? UCC 2-209 or common law?
It’s a little different for no-assignment and no-delegation clauses. At least there it’d be clear which side is doing wrong. And I recall something about this in Tina Stark’s book, which advocates extra sentences something like “attempts to assign/delegate against the terms of this agreement are void”. I’d have to pull the book to see if she cited cases.
Hi Kyle. The issue isn’t breach, it’s whether oral amendments are effective. Of course, an amendents-in-writing provision would likely be ineffective if the parties were in the habit of treating oral amendments as effective.
My suggested language: ‘Purported amendments to this agreement will be void unless written and signed by the parties’. MSCD-speak: Condition using language of policy?
As for the listed options, some comments:
1/ [To be effective,] Any amendment to this agreement must be in writing.
–Doesn’t work because it purports to impose a duty on the subject of the sentence, ‘any amendment’. Amendments can’t have duties.
2/ An amendment of this agreement will be effective only if it is in writing.
3/ No amendment of this agreement will be effective unless it is in writing.
–This may be ‘hypertechnical’ (or in English, ‘picky’), but unless the drafter says ‘purported amendment’, she creates a category of things that are ‘amendments, but amendments that are not “effective” amendments’. It would be more hygienic to leave it at two categories: things that are amendments and things that aren’t, so that the phrase ‘effective amendment’ is redundant and the phrase ‘ineffective amendment’ is oxymoronic.
4/ The parties may amend this agreement only in writing.
5/ The parties may not amend this agreement except in writing.
–These two ‘unpack’ into three parts: (1) after signing, the parties have discretion to amend this agreement (ie, the agreement is amendable); (2) the parties have discretion to amend this agreement in writing; (3) the parties do not have discretion to amend this agreement by any means other than writing. I can’t think of any need for (1) and (2). The point of (3) (no unwritten amendments) is not best accomplished by language limiting the parties’ discretion. ‘Purported amendments to this agreement will be void unless written and signed by the parties’ does the trick, I think.
6/ This agreement may not be amended orally.
–Recasting into the active voice and supplying the obvious by-agent: ‘The parties may not amend this agreement orally’. This is the equivalent of saying, ‘Under this agreement, the parties will not have discretion to amend this agreement orally; if they do so, they will be exceeding whatever discretion this agreement gives them’. The provision’s denial of discretion doesn’t make oral amendments impossible, it just makes them naughty, but if parties orally amend, I can’t imagine that by doing so, the parties haven’t waived any claim that the amendment is anyone’s breach and any objection to enforcement of the unwritten amendment as if it were written. I think that was one of Kyle’s points. If so, I agree. –Wright
I confess to being guilty of amendment shame. In my industry (construction) and contracts, we insist that an amendment must be explicitly identified as… an amendment. Our contracts go for months or years and involve massive paper shuffling between contractor and owner. We occasionally get claims that minutes of meetings, approved change requests or even letters sent unilaterally have effectively amended a contractor’s fundamental performance obligations under the contract – always unbeknownst to the owner. This is particularly the case if the contractor engages their lawyer to find an excuse for a performance failure after the fact. Our solution – to make sure that an amendment is called just that, so that, for example, minutes of meetings (practice for which is to have them signed and countersigned, acknowledging that the minutes are correct), do not get so far as to change the fundamental deal. Pedantic or unnecessary? Possibly. But it’s a couple of words in a document that have actually stopped claims, so I like them. As with other provisions we write, we’d rather not have to fight than to say less, even if we’re confident we’d win the fight.