My article Eliminating the Phrase Represents and Warrants from Contracts is now available. It’s in the latest issue of Transactions: The Tennessee Journal of Business Law. Go here for a PDF.
This article shows that it’s pointless and confusing to use represents or warrants in a contract to introduce statements of fact. It recommends that instead you use states to introduce statements of fact, and that if you want to exclude particular remedies or make sure that they’re available, do so explicitly instead of relying on inscrutable code. It first considers how drafters use represents and warrants in the United States, explanations offered for their significance, and how those explanations fall short. It then does the same for use of represents and warrants in England. It then offers an alternative explanation for prevalence of the phrase represents and warrants and recommends alternative ways to address issues ostensibly underlying use of represents and warrants. It then considers use of warrants in the context of sale of goods. It closes by considering some broader implications.
This article presents at its starkest the disparity between traditional contract language and what I think makes sense. Some other topics can be a bit subtle (for example, use and abuse of shall), so the full extent of the disparity might not be readily apparent. And still other topics involve issues that feature in contracts only sporadically (for example, efforts provisions), so you can avoid focusing on the disparity. By contrast, represents and warrants has somehow become the label for an essential component of most contracts, so the implications of my take are more in-your-face. Warning: some brains might implode.
In this article I do my best to be methodical, comprehensive, and analytical. I leave it to others to determine what level of scholarship that, um, represents, but I can tell you that rigorous microscale analysis of contract language is exceedingly rare. That void plays a part in the dysfunction of traditional contract language. I also tried to make this article readable. I hope I succeeded.
This article looks at usage in both the United States and England because nowadays I try to consider the international implications of usages I study.
I’ve previously written plenty about represents and warrants, so why write this article? Because my previous scribblings weren’t comprehensive enough. This one is. Although you can always find me in the marketplace of ideas, ready to debate pretty much anything, as far as I’m concerned I’ve now put a stake through the heart of represents and warrants.
By the way, if you’re inclined to ignore this article because the Tennessee Journal of Business Law isn’t exalted enough for you, you might find this post of interest.