If you have, at one time or another in the past, either
purchased a business, or bought real estate, or even signed up for a credit
card, then chances are that you have already signed a contract that contains a
“speak-now-or-forever-hold-your-peace” clause. Let me explain what this clause
is, and why it’s important.
Many contracts contain words, usually located near the very
end of the document, which reads something like this:
This Agreement sets forth the entire, final, and
complete agreement between the parties. This Agreement supersedes any and all
prior negotiations, agreements, representations, and/or understandings between
the parties, whether in writing or made orally.
While the exact wording of this
type provision may vary from contract to contract, don’t be surprised to find
this type of language in your agreement. It is standard and customary for
contracts to include this language, but it is nevertheless very important that
you understand what it means.
I call this type of provision the
“speak-now-or-forever-hold-your-peace” clause, because the clause essentially
renders unenforceable any prior oral or written representation or promise made
to you before the agreement is signed, unless that same representation or
promise is included in the final version of the contract. (This is, by the way,
an enforceable provision and often difficult to challenge later on.)
The lesson here is that, before
you sign the final agreement, you need to be certain that any important
representations or understandings be included somewhere else in that final
document that you are signing. In other words,
(1) Speak Now -- that is, insist that the final version of the contract you are signing
include all of the important “side” agreements, oral representations, and
written promises made to you in any form (including written, oral, via email),
OR
(2) Forever Hold Your Peace – your legal ability
to complain later on about those things not included in the final agreement is
gone forever..
My suggestion is that you ask for
those “missing” promises and representations be included. If the other party
does not wish to commit to putting those other promises and representation in
writing, then you should ask yourself how important those things are, and
whether you feel you want to sign on the dotted line.
The bottom line: Ask that
everything important to you be put in the contract. Speak now or forever hold
your peace….
_________________________________
Practicing since 1988, attorney
Lawrence Vergun has successfully represented individuals and businesses in the
areas of business, real estate, corporate and intellectual property law. He is
a member of the Business Practice Group at the Harris Law Firm, PC in
Hillsboro
,
Oregon
. His webpage is located at: Lawrence Vergun
