“Unless the Parties Agree Otherwise”

In grading student assignments, I found myself commenting on their use of unless the parties agree otherwise. I thought that I had already written something somewhere about this phrase, but evidently not. So here goes:

As a general matter, the phrase unless the parties agree otherwise is redundant. The parties could agree to waive, amend, or delete any provision in a contract, whether or not that contract says that they may. But if a party feels that it would facilitate negotiation of a given provision if everyone were reminded that the parties might agree on a different arrangement down the road, then by all means use the phrase.

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.