We all know that the phrase represents and warrants is pointless and confusing, to the point of being plain-old dumb. (What, you’re not aware of that? Then go read my 2015 law-review article.) In theory I’m open to rational discussion on the subject, but no one has been able to make a dent in my reasoning.
But that doesn’t mean you should wage a scorched-earth campaign against represents and warrants in favor of states. In particular, automatically striking represents and warrants from the other side’s draft would likely result in a lot of hand-wringing and anxiety. So I generally recommend that for now you replace represents and warrants with states only in clear and modern commercial-contract templates that you use a lot in contexts where you have enough leverage to cut short annoying pushback.
But there’s one context where use of represents and warrants is sufficiently effed up that you might want to take remedial measures. Here, broken up and annotated by me, is a representative example plucked at random from the post-apocalyptic hellscape that is EDGAR:
Consultant represents and warrants that [Ostensibly, represents and warrants serves only to introduce statements of fact. Using warrants by itself is an artifact of contracts for the sale of goods and is a different can of worms altogether.]
(i) it has full power, capacity and authority to enter into and perform this Agreement and to make the grants of rights contained in Section 3(c), and Consultant ’s performance of this Agreement does not violate or conflict with any agreement to which Consultant is a party; [OK, these are statements of fact, so we good.]
(ii) the Services will be performed in a professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing Services of a similar nature under similar circumstances by personnel with requisite skills, qualifications and licenses needed to carry out the work; [Uh, suddenly we’re in the ditch. This isn’t a statement of fact. Arguably it’s a statement of future fact, and each statement of future fact contains an obligation trying to get out. But given that a party to the contract, namely the consultant, would be performing the services, it makes sense to consider this an obligation expressed using will instead of shall. That happens routinely in the random world of traditional contract-drafting verb structures. And if it’s an obligation, that would turn represents and warrants into … throat-clearing!]
(iii) all Services and Deliverables will materially conform to the Specifications for a period of one (1) year from Acceptance; [This is another future fact! It should be stated as an obligation, in a provision addressing what happens if stuff doesn’t comply with specifications. You could even give it the heading Warranty.]
(iv) to the best of Consultant ’s knowledge, AssetMark’s permitted use of the Indemnified Items will not infringe the Intellectual Property Rights of any third party; [Yet another future fact! It’s a matter of risk allocation: I’d structure it as an indemnification provision.]
(v) there is no pending or threatened litigation that would have a material adverse impact on its performance of this Agreement; and [Phew, this is a statement of fact.]
(vi) it will use industry best practices to prevent the introduction of any viruses, worms, or other harmful or destructive code into the Services, Deliverables, and AssetMark’s systems. [Another obligation!]
In commercial contracts represents and warrants is routinely used to introduce this sort of randomness. I’m not sure that even using states would by itself be enough to fix this. The first step is getting yourself attuned to the categories of contract language. Check out this blog post, then read chapter 3 of A Manual of Style of Contract Drafting, in small doses. Once you’re suitably sensitized, you could strip this sort of thing down to its constituent parts and put them where they belong.
Postscript, 8:00 p.m., 25 September 2019
Soon after publishing this post, I was involved in the following exchange on Twitter:
I think it's no accident that an incoherent introductory phrase is used to introduce chaotic content. And if causation might not be complete (as I acknowledge in my post), there's certainly correlation.
— Ken Adams (@AdamsDrafting) September 25, 2019
@doroesq makes an interest point, so I’ll try to respond a little less cryptically. In saying “I’m not sure that even using states would by itself be enough to fix this,” I’m in effect acknowledging that it’s not necessarily the case that use of represents and warrants is responsible for the chaos. But I’m comfortable that if use of a meaningless introductory phrase isn’t entirely the problem, it’s at least a contributing factor. And it’s clear that represents and warrants is just one symptom of the broader problem that certainly is responsible for the chaos, namely the fact that those who sling around traditional contracts prose are oblivious to nuances of verb structure.
