general provisions of contract

what your lawyer calls the 'standard clauses'

 

Whatever their subject or purpose, all contracts have a number of items in common. Lawyers usually refer to these as the 'standard clauses'.

Although some of what is contained in standard clauses may seem obvious, it's important to include them and to ensure that your and your spouse-to-be get them right.

 

On this page we have provide a general outline of each of these standard clauses, which we call the General Provisions. And to get you started, we've also provided an example of each one.

Ensure you discuss each clause with your legal counsel and that you understand what you are commitng yourself to.

6.1 Entire Agreement

Sometimes known as an 'integration clause' or 'merger clause', the entire agreement clause states that this contract is the contract. The effect of this clause is that the contract cannot be used to compel someone to do something that is not actually written down the contract.

See sample

6.1.1	[Romeo] and [Juliet] intend this Agreement, including its referenced Exhibits, to constitute the entire agreement between them with respect to the matters contemplated in its Purpose and embraced by its Scope.
6.1.2	[Romeo] and [Juliet] intend this Agreement to supersede all prior or contemporaneous agreements, representations, understandings, communications and proposals, whether electronic, oral, or written, between them.
6.1.3	No other agreements, representations, understandings, communications and proposals, whether electronic, oral, or written, between [Romeo] and [Juliet] shall be deemed a part of this Agreement.
6.1.4	[Romeo] and [Juliet] acknowledge and agree that in entering into this Agreement, and the documents referred to in it, he or she does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding of any person (whether a party to this Agreement or not) other than as expressly set out in the Agreement.

6.2 Severability

Would you throw out an entire box of choclates just because one seemed bad. or change your car because the windshield was dirty? So what happens one or a few parts of an otherwise good contract are found to be in some way defective?

Contract law has a concept called severability. This refers to a provision which states that if a part or parts of a contract are found to be invalid, the remainder of the contract should still hold. Unless, of course, that clause that was found to be invalid was fundamental to the purpose of the contract.

Show sample

6.2.1	[Romeo] and [Juliet] intend this Agreement to be severable.
6.2.2	In the event that any provision, clause, sentence, section or other part of the Agreement is held to be invalid, illegal, inapplicable, unconstitutional, contrary to public policy, void or unenforceable in law to any person or circumstance, [Romeo] and [Juliet] intend that the balance of the Agreement shall nevertheless remain in full force and effect so long as the Purpose of the Agreement is not affected in any manner adverse to either party.
6.2.3	Upon such determination that any term or other provision is held to be invalid, illegal, inapplicable, unconstitutional, contrary to public policy, void or unenforceable in law to any person or circumstance, [Romeo] and [Juliet] undertake to negotiate in good faith to modify this Agreement so as to give effect its Purpose as closely and as fully as possible in an acceptable manner to both.

6.3 Assignment

Of their nature, some contracts are assignable - transferable to another party - and others are not. In a transferable contract, one party can sell or otherwise pass on their role in the contract to someone else.

Show sample

6.3.1

[Romeo] and [Juliet] acknowledge that the rights and privileges conferred under this Agreement are not assignable, transferable or saleable.

If your check your banking or insurance contracts, you will find they are usually transferable. Typically, they give your bank or insurer the right to sell their company to another, with the result that the new owner takes on the rights and responsibilities of the company you originall signed the contract with.

One example of a non-transferable contract is an employment contract: if you sign up for a new job, you can't really send along your sister instead. A marriage contract is, of its personal and intimate nature, non-assignable.

6.4 Succession

A succession clause in a contract gives sucessors of the parties all or certain rights in the event that the parties die.

Show sample

6.4.1

[Romeo] and [Juliet] acknowledge acknowledge and agree that the rights, benefits and privileges conferred under this Agreement are not transferable to their heirs or other successors, except as stated explicitly in this Agreement.

6.5 Force Majeure

Sometimes, crazy stuff happens - earthquakes, tornados or other events that may prevent a person from fulfiling their obligations. Force Majeure (French for 'superior force') is a common clause that frees the parties from liability or obligation due to the occurence of some extraordinary event or circumstance beyond their reasonable control.

However, force majeure is not intended to excuse non-performance where it is cuased by the usual and natural consequences of external forces - for example, predicted rain stops an outdoor event, or where the intervening circumstances are specifically contemplated.

Show sample

6.5.1	[Romeo] and [Juliet] agree that neither shall be liable for any failure to perform his or her obligations under this Agreement where such non-performance arises from unanticipated catastrophic circumstances beyond his or her reasonable control including, but not limited to, acts of God, war, riot or civil commotion, fire, flood, terrorism, drought or act of government provided, that the Party seeking to be excused shall make every reasonable effort to minimise the difficulties resulting from such a Force Majeure circumstances.
6.5.2	[Romeo] and [Juliet] agree to keep each other fully informed of any such Force Majeure circumstances.
6.5.3	During the period that the performance by one of the Parties of his or her obligations under this Agreement is suspended by reason of Force Majeure, both [Romeo] and [Juliet] shall cooperate and use their reasonable best efforts to continue the Purpose contemplated by this Agreement.
6.5.4	[Romeo] and [Juliet] agree to resume their obligations under this Agreement as soon as possible upon the passing of the Force Majeure event.

6.6 Headings

To avoid uncertainty, this states that headings, captions or other items of text that may appear throughout the contract are not actually part of the contract.

Show sample

6.6.1	[Romeo] and [Juliet] agree that headings, titles, captions and any list of contents are inserted solely for convenience of reference only and are not part of the Agreement.
6.6.1	[Romeo] and [Juliet] agree to resume agree that headings, titles, captions and any list of contents shall not affect the meaning, construction or effect of this Agreement, nor act as a limitation on the scope of the particular clause, section or paragraph to which they refer, and shall be ignored in the interpretation of this Agreement.

Loading ...