Representations and Warranties
"Representations and Warranties" is a crucial term that holds significant importance. This article aims to provide a concise yet comprehensive overview of this concept, its key elements, and examples of how it is handled in commercial contracts.
What are Representations and Warranties?
Representations and warranties are statements made by one party (the "representing party") to the other party (the "relying party") during contract negotiations. These statements are intended to provide assurances about certain facts, conditions, or circumstances relating to the transaction or the parties involved.
Key Elements in the Clause:
1. Accuracy: Representations and warranties should be accurate and based on the best knowledge, information, and belief of the representing party at the time of making them. They should not be misleading or intentionally false.
2. Materiality: The representations and warranties should be material to the transaction, meaning that they should be significant enough to influence the relying party's decision to enter into the contract.
3. Survival Period: The clause should specify the survival period for representations and warranties. This determines the duration during which the relying party can bring a claim against the representing party for any breach of the statements made.
Examples of Handling Representations and Warranties in Commercial Contracts:
1. Sale of Business: In a contract for the sale of a business, the seller may provide representations and warranties regarding the financial condition, ownership of assets, absence of litigation, and compliance with laws. If any of these representations and warranties are later found to be untrue, the buyer may have the right to seek remedies such as contract rescission, indemnification, or price adjustments.
2. Software License Agreement: In a software license agreement, the licensor may provide representations and warranties regarding the functionality, performance, and non-infringement of intellectual property rights related to the software being licensed. If the software fails to meet the specified standards or infringes upon third-party rights, the licensee may be entitled to seek compensation or termination of the agreement.
Representations and warranties are essential provisions in commercial contracts as they establish trust and provide assurances to the relying party. Careful consideration should be given to drafting these clauses, ensuring accuracy, materiality, and specifying the survival period. By including robust representations and warranties, parties can mitigate risks, protect their interests, and maintain a fair and transparent contractual relationship.
How to manage clauses like these effectively?
Check out Clause Library implementation from ContractKen. It has a really smooth, easy to use interface which allows for easy curation, management, tagging, commenting and retrieval (from Microsoft Word) of your clauses.