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Warranties vs. conditional obligations: Lexical good sense bows to commercial reality

Ken Adams’s excellent Manual of Style for Contract Drafting, second edition, says that sales-contract drafters could ditch the ‘warranty’ clause. It suggests just having a repair-or-replace obligation that is triggered when the goods don’t measure up to the agreed specifications. (§ 12.438-12.440). Ken says “[t]his approach not only results in more concise prose, it allows you to avoid having to choose the lesser of two evils—represents or warrants.”

I think that’s a great idea — in principle. I tried it myself when I was an in-house counsel. In practice, however, there was a problem: I found that some procurement people insisted that the contract had to include a “warranty,” denominated as such.

I didn’t want to spend the time trying to convince these folks that legally, a warranty with limited remedies and a conditional obligation are pretty much the same thing. And my sales guys would not have been pleased that legalese was standing in the way of their getting a commission.

So in a case of lexical good sense bowing to commercial reality, I regretfully restored the “warranty” language to our standard form.

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