Neutralizing “Represents and Warrants”

OK, so we now all know that the phrase represents and warrants is pointless and confusing. My recent article on the subject (here) establishes as much in excruciating detail.

But I don’t recommend that you ask that the lawyers on the other side of a deal replace represents and warrants with states. The benefit of doing so would be more than outweighed by all the hand-wringing and posturing that your request would likely prompt.

Instead, I offer you a much simpler fix—ask that the other side insert the following in the draft:

The verb used to introduce a statement of fact in this agreement does not affect the remedies available for inaccuracy of that statement of fact.

That would serve to put to rest the misconceived notion that represents and warrants has some bearing on remedies.

You could use the same sentence in your drafts if someone is wary of the implications of using states to introduce statements of fact.

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.