3. Entire agreement clauses

An entire agreement clause is a provision in a written agreement, which provides that, when the agreement is signed, it constitutes the entire agreement between the parties and supersedes any prior agreements or negotiations (including any heads of terms). Its primary purpose is to prevent claims that pre-contractual statements constitute additional terms of the agreement, a collateral warranty or some other side agreement. However, for historical reasons, most entire agreement clauses also include wording intended to prevent pre-contractual statements from giving rise to claims for misrepresentation. In addition, they often attempt to restrict liability in misrepresentation in respect of those representations and statements that are included in the final agreement.

4. Structure and terms of commercial contracts a. Form

Under English law, most contracts do not need to be in a particular form. A deed requires certain execution formalities; apart from that, most deeds follow the traditional structure outlined below. Thus this commentary applies equally to deeds except where indicated.

Traditional structure

Many commercial contracts are in a traditional written format which has remained largely unchanged for many years. The traditional form is summarised below under Skeleton structure. This note will follow the order of the traditional structure.

Alternative structure

The traditional structure is by no means universal. There are a number of other formats, of which the most common is a structure which has the key commercial variables and a space for signature on the first page, with terms and conditions plus schedules (if any) following. This has the advantage of removing the need for commercial managers to wade through terms and conditions including boilerplate clauses looking for the commercially significant provisions. If this format is followed, it is common sense to make clear on the front signatory page or section the full extent of the document of which the front signature page is part, if only so that the signature page cannot be attached to some other document. This could be done by, for example:

• Including a contents list on the front/signature page, identifying all schedules and other attachments.

• Numbering the pages so that it is clear that the front page is "Page 1 of X pages".

Letter agreements

Another common format for evidencing a contract in a single document is the letter agreement. This will normally take the form of a letter from one party to another, ending with the formula:

"If you agree with the contents of this letter, kindly sign, date and return to us the attached copy".

Such a structure will evidence an agreement that is just as enforceable as one evidenced by a traditional, more formal document. Because of this, it will still be necessary to deal with many of the matters discussed below, for example, correct details for the parties, clear performance and payment obligations, and at least a minimum of boilerplate provisions (although boilerplate provisions could be incorporated into the letter agreement by means of a reference to some standard terms, for example, those of one of the parties, or terms published by some third party industry body).