Yes, the phrase represents and warrants is a fixture in contracts. And it won’t disappear from the scene any time soon.
But now that my article (this one) is out there, I can declare that represents and warrants is a zombie usage.
And no, it’s not like one of those fast zombies. Fast zombies are badass. Instead, represents and warrants is like one of these zombies:
Yeah, the kind of zombie that just mills about aimlessly in a parking lot, or is stuck in a dead-end alley, pawing at a fence. Ultimately, someone puts a crossbow bolt through their brain, runs them over with a truck, or dispatches them in some other quick, effective, and preferably inventive way.
I get it that expediency is a big part of doing deals. You get the deal done using whatever’s at your disposal, and when it comes to contracts, what’s at your disposal likely contains usages that are, well, dead but just don’t know it.
Those who opt for expediency generally prefer that it be kept under wraps. But if you continue to use represents and warrants, I suggest it’s clear that either you’re opting for expediency over quality or you’re not paying attention.
I know them’s fightin’ words.
(See today’s related posts “My New Article on ‘Represents and Warrants'” (here) and “The Rise of ‘States'” (here).
“Represents and warrants” will outlive us all, because from the workaday practitioner’s perspective it’s good enough. Ken’s alternative of “states” has a chicken-and-egg problem, in that it isn’t so obviously advantageous as to be able to overcome caution, inertia, and network effects.
Drafting usages aren’t subject to a popular vote. See my post on states. Yet another example: I’m currently working on a template for a Fortune 100 client. I put states in the template and they didn’t even feel the need to discuss it.
Ken writes: “Drafting usages aren’t subject to a popular vote.”
They’re certainly subject to the Golden Rule variation: He who has the gold (or other bargaining power in the negotiation) ….
I wouldn’t recommend that one change the other guy’s draft to incorporate states, particularly as I can neutralize R&W by using the one sentence I propose in the article.
Oh, you coy lad. That sentence is, ‘The verb introducing any statement of fact will have no effect on remedies available for the fact’s inaccuracy.’ –Wright Burke
“And the article can be yours for five easy payments of $9.99, plus shipping and handling!”
I work in supply chain contracting where we are procuring large dollar value multi-year products. I have become an advocate of contracting for the future reader and resolver of disputes and not for the benefit of the contract drafter. The clearer language the easier and less costly to resolve future disputes. Given human nature of eyes glazing over at contract jargon and the brain shutting off, simple words like “states” over “represents and warrants” is the better approach. Statements in writing can be relied upon to the same level of confidence, maybe even more so given a cleared meeting of the minds, that warranties and representations that may not be so clear in they parties intent.
I often see under the Reps and Warranties section “Contractor shall provide the services in a professional and workmanlike manner.” A “representation” is supposed to be a statement of fact/truth the day of the contract (Car has 10 miles; employee has a degree). A warranty is supposed to be something that is promised and if that promise is broken, then the warranty is the party’s contractual obligation to fix it.
I really don’t understand how something that is a promise to do something is really a statement of fact/truth the day of the contract, or why you would need a warranty for what is supposed to be the very essence of the contract.
Unfortunately, in the interests of signing deals, I can’t really make this a hill to die on. Or really even one to really charge up.