I’d like to revisit something discussed in MSCD—how one states warranties relating to, for example, goods yet to be delivered.
Consider the following:
Acme warrants that the Units will be free from defects when shipped from Acme’s plant.
That’s standard warranty language, with Acme stating “future facts,” to use warranties-doctrine lingo.
Well, in terms of semantics, I’m not keen on the notion of “future facts,” because what’s being stated isn’t a fact at all. Instead, it’s a commitment on the part of Acme to deliver conforming goods. So I recommend instead saying exactly that:
Acme shall sell to the Buyer Units that comply with the Specifications.
If you want also to specify remedies, then do so:
If a Unit fails to comply with the Specifications, then …
Now, as a matter of idiom, it’s standard for people to speak in terms of future facts: I promise that the cake will be ready! I guarantee that you’ll be happy.
But just because use of future facts is idiomatic doesn’t mean that they’re suited to contracts. Language of obligation is a clearer alternative to stating “future facts.” And it’s not a good idea to use future facts just for the heck of it—contracts aren’t the place for elegant variation.
Of course, getting rid of future facts means that you can also get rid of the verb warrants, at least in this context. That ties into my broader analysis of represents and warrants. You’ll have to wait a few months for that. I’m sure you’re heartbroken!