The following oddity from a reader:
When is an amendment not an amendment? When it’s a separate agreement!
From the introductory paragraph of a supplier’s attachment to another agreement:
IMPLEMENTATION ASSISTANCE AMENDMENT NUMBER ONE TO BASIC LICENSE AGREEMENT NUMBER [redacted] CUSTOMER: [redacted]
This Amendment, together with the terms and conditions contained int he Basic License Agreement, dated January ___, 2010 shall constitute a separate and distinct Agreement between the parties. All the terms and conditions of said Basic License Agreement continue in full force and effect and shall control this Amendment unless specifically modified hereby.
I’m not entirely sure what this means. From what I gather, what they really intend is for this “Amendment” not to amend anything, but to use the “Basic License Agreement” as a master set of terms and to add additional terms to address “implementation assistance” services. Sort of like an addendum with additional legal terms. Nevertheless, I wonder whether its prudent under any circumstance to refer to something as an “amendment” when you don’t intend it to modify the agreement to which it is attached.
From the world of bizzaro-drafting!
I agree: don’t give anything in a contract a misleading label, because someone—notably a judge—may take you at your word.
2 thoughts on “When Is an Amendment Not an Amendment?”
Not to mention that this would cause all kinds of chaos where there are tolling issues, such as in a mortgage or other document that would be given debtholder priority based on its effective date.
from your answer, i get it that an addendum does not have the effect to amend an agreement? do you know of any scholarly witings on this topic or have you written anything more detailed about addendums?