In MSCD 12.285–315 I explain why it’s pointless and confusing to say represents and warrants, not to mention representations and warranties. No one has made a serious attempt to refute my argument.
But recently I received an interesting report from the front lines. Knowing that I have a thing about represents and warrants, Trevor Grant of the Canadian law firm Miller Thomson let me know that in recent deal negotiations he was involved with, the lawyer for the other side requested, in connection with a standard no-dispute representation, that “represents and warrants” be replaced with “states.”
In this November 2008 blog post I note that instead of represents and warrants you could use a word that’s free of any doctrinal baggage, a word such as asserts. Another such word is states, and Trevor’s message to me was the first time I’d encountered actual use of such a word.
The question is, what prompted the requested change?
Conceivably, whoever requested the change might simply have wanted to avoid the muddle associated with represents and warrants. But if that’s the case, they’re more aggressive than I am, as I’ve elected to stick with represents. Here’s what I said in my blog post on asserts:
A guiding principle in my writings is that the corporate bar is allergic to novelty. I stand a greater chance of having people pay some attention if I recommend that they drop one word in a traditional doublet, as opposed to my recommending that they drop the doublet entirely in favor of a novel alternative.
And those lawyers who can handle the novelty will probably still be nervous about the remedies implications of using asserts, and you’d still have to spend time assuring them that there aren’t any.
But I think it more likely that they requested the change because they think that either represents or warrants (or both?) is a “magic word” that has implications for remedies.
MSCD 12.313 notes how English lawyers are prone to deleting represents, on the assumption that doing so will protect their client from an action for misrepresentation—a dubious notion. English lawyers request that change in response to the Misrepresentation Act 1967, which abolished the doctrine of merger. Given that Canada doesn’t have an analogous statute, it’s not clear whether similar logic was behind the requested change that Trevor told me about.
Maybe it was warrants they wanted to get rid of. In an email exchange a couple of years ago, a Canadian academic suggested to me that in the absence of warrants, a Canadian common law court might say that you’re liable in tort for a misrepresentation but not in contract, because the party in question hadn’t given a warranty. Such thinking is redolent of the seventeenth century, in particular the case of Chandelor v. Lopus, but it might represent the conventional wisdom in Canada, so it might be what prompted Trevor’s counterpart to request the change.
The bottom line is that it’s impossible to tell, without knowing more, what might prompt someone to want to replace represents and warrants with states. If someone asks you to make that change, ask them why it’s important to them. If they say they want to preclude an action for misrepresentation, or an action for breach of warranty, resist the urge to snicker. Instead, tell them that you don’t believe in the “magic words” approach to contract drafting. Say that instead of relying on the verb used for a factual assertion to also convey information regarding remedies, you’d much rather deal with remedies explicitly. If that’s your approach, which verb you use with factual assertions becomes largely irrelevant.