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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 video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, March 22, 2022

Recorded event now available

or call 1-800-926-7926

This CLE course will guide business counsel in drafting and negotiating representations and warranties clauses in commercial contracts. The panel will discuss critical 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.


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. An implied promise of indemnity supports reps and warranties clauses 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.

Counsel must determine how to draft an effective disclaimer properly. And significantly, 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.

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.



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


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 practical 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?


Macaulay, Susan
Susan J. Macaulay

Managing Partner
Edwards Maxson Mago & Macaulay

Ms. Macaulay focuses her practice on commercial transactions and corporate matters, including banking and finance,...  |  Read More

Samji, Omar
Omar Samji

Shearman & Sterling

Mr. Samji is a Private Equity and Mergers & Acquisitions partner and co-leads the firm’s Energy Innovation...  |  Read More

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