Non-Merger Agreement

Merger clause problems are most common in service contracts, for which the scope of work to be done is not sufficiently clearly defined. Both sides believe that they have reached a common understanding of the task at hand. However, ordinary people (i.e. non-lawyers) read the language of the contract and generally see what the agreement is what they think it is. They are not trained to become lawyers. Lawyers review a contract and identify potential problems (i.e. lack of details on the scope of the work) and make solutions for their clients. As a general rule, you can identify a merger clause because the section titled „Complete Agreement,“ „Full Agreement,“ „Full Agreement,“ „Integration Clause“ or „Merger Clause“ is simple. Note that these clauses are often limited to the „Fine Print“ or „boiler plate“ section of the agreement. This may mean that the clause is the norm and/or is not so important to read. However, if a non-lawyer designs the contract and the other party does not audit a lawyer, the merger clauses can be a big problem. In the case of a dispute over the interpretation of the agreement, the merger clause prevents any party from presenting evidence that literally exceeds the language of the contract. This means that no e-mail, SMS, phone calls or „handshake agreements“ can be used to interpret (or reinterpret) the simple language of the agreement.

The non-merger clause provides that the obligations of the parties under the agreement and any other previous agreements survive the conclusion. Merger clauses allow the parties to obtain their full agreement in one document. Such clauses encourage the parties to be concrete in advance, avoiding problems in the future. Professional support in the preparation of the contract is the best way to protect yourself. This is why it is important to consult a contract lawyer before drafting or signing an agreement with a merger clause. If you have read our previous article on whether oral agreements are enforceable, you know that you are suspicious of oral or incidental agreements that are not included in a final written document. Merger clauses, which are widespread in contracts, go even further. An example of a typical merger clause is that if your agreement contains a good operating order guarantee that it expressly provides that it will survive the closure, then the seller promises that the oven will work at closing, but not that it will continue to work one minute after closing.

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