Representations and Warranties Clauses in Commercial Contracts: Avoiding Drafting and Negotiation Pitfalls

Best Practices for Minimizing Risk, Allocating Liability and Enforcing Indemnity Clauses

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, March 21, 2017
Recorded event now available


This CLE webinar will provide guidance to business counsel for drafting and negotiating representations and warranties clauses in commercial contracts. The panel will discuss key considerations when structuring reps and warranties provisions, potential challenges with enforcing indemnity clauses and other remedies following a reps and warranties breach, and strategies for avoiding common drafting and negotiation pitfalls.

Description

Reps and warranties provisions are key clauses in commercial contracts. Representations are promises that induce one party to enter the contract, while warranties give that party assurance that the representations are reliable. Reps and warranties clauses are supported by an implied promise of indemnity if the representations turn out to be false.

Drafting warranties poses challenges. Business counsel must strategically negotiate reps and warranties clauses to ensure their clients’ rights are adequately protected. Counsel needs to understand the difference between a legally operative express warranty and mere puffery that imposes no legal obligation. Counsel for the party making the representations and warranties frequently seek broad disclaimers of implied warranties and strict indemnification clauses. It is imperative that counsel recognize how to properly draft an effective disclaimer. And importantly, depending on the wording, the protections of a warranty can be extended far into the future—and the statute of limitations would not even start to run until the buyer discovers or reasonably should discover a breach. Counsel for both parties need to recognize that the words they use can drastically affect their clients’ rights.

The lawyer also needs to be concerned about what happens after contract formation—the UCC allows for post-formation warranties, and “course of performance” can “supplement” (add to) the carefully drafted terms of a contract. The attorney needs to counsel his or her client to recognize that their words and conduct can actually change the contract.

Listen as our panel of attorneys experienced in negotiating commercial contracts discusses best practices for drafting and negotiating reps and warranties clauses in the agreements. The panel will provide strategies for avoiding common negotiation and enforcement pitfalls and resolving contract disputes.

Outline

  1. Drafting tips for reps and warranties clauses
  2. Enforcing indemnity and other remedies for breach of reps and warranties

Benefits

The panel will address these and other key issues:

  • How can counsel best mitigate and allocate risk when drafting and negotiating reps and warranties clauses in commercial contracts?
  • What are the most commonly disputed issues when negotiating these clauses and what are some effective strategies for resolving them?
  • What enforceability challenges do parties commonly face when seeking to make an indemnity claim following a breach of reps and warranties?

Faculty

Edward J. Momkus, Member
Momkus McCluskey, Lisle, Ill.

Mr. Momkus concentrates his practice in complex business transactions, mergers and acquisitions, corporate law, financing, business succession and liability prevention systems. He negotiates and drafts contracts for a wide array of business transactions, including manufacturing contracts, purchase agreements, equipment leases, corporate and partnership formation, business succession and sales of businesses. He previously was employed as corporate attorney at Leaseway Transportation Corporation and later Evans Products Company, and subsequently became Appliance Group Counsel at Sunbeam Corporation.

Timothy Murray, Partner
Murray Hogue & Lannis, Pittsburgh

Mr. Murray represents numerous businesses and individuals in all manner of contract transactional matters and disputes. He co-authors with Dr. John E. Murray, Jr., the biannual supplements to the landmark contract law treatise Corbin on Contracts. He and Dr. Murray have collaborated on the book for contract law practitioners published by PBI Press, Contract Law for the 21st Century Lawyer: Critical Analysis and Practical Application. He is updating numerous chapters in Lexis' landmark formbook series, Rabkin & Johnson Current Legal Forms.

Steven M. Richman, Member
Clark Hill, Princeton, N.J.

Mr. Richman practices in the areas of domestic and international commercial law, including distributorships, intellectual property, agency, art and photography law, professional responsibility and contracts. He is chair of the New Jersey State Bar Association's International Law Committee. Within the American Bar Association, Steven is incoming vice-chair of the ABA's Section of International Law and chairs the IBA's Multidisciplinary Practice Committe. He is a frequent CLE lecturer both in this country and around the world.


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Business Contracts and Franchise Advisory Board

Vincent R. Martorana

Counsel

Reed Smith

Charles (C. J.) Schoenwetter

Partner

Bowman and Brooke

Rochelle Spandorf

Partner

Davis Wright Tremaine

Craig Tractenberg

Partner

Fox Rothschild

Les Wharton

Chief Legal Officer

Coverall North America

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