December 19, 2020

Unless Otherwise Provided By The Agreement


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As reported on ContractsProf Blog, the phrase except otherwise stated in this agreement in the Dan Rather Newscaster contract with CBS. It was also included in the opinion of a New York appeals court in CBS` appeal over the court`s refusal to dismiss Rather`s default action against CBS. Words, unless otherwise agreed, are sometimes inserted to ask the reader (at a later date) to propose a waiver to the provision. This is due to the fact that many people are psychologically inclined to believe that they are related to the text of the treaty (the literal text implies a flexibility that does not exist in the terms initially). For example, many prohibitions or contractual restrictions are not in themselves set in stone, but require an appropriate explanation before a party renounces an offence in a particular context. Good practice – be specific. Instead of using the abstract sentence, unless otherwise agreed, it is recommended to be specific and determine which clause of this provision is actually limited or qualified. Other qualifiers or subordinations. The equivalent of, unless otherwise agreed, would be, whatever is contrary [in this agreement]. Clearly, this counter-clause means that the above provision may limit or qualify another provision (of the treaty or elsewhere). While these clauses imply a rule with certain exceptions, the expression that is the subject of a hierarchical priority of clauses introduced.

Note the subtle difference between the two examples above, which is the restriction where such a derogatory agreement can be concluded. It may matter little, but it is sometimes useful. If, for example.B. in a framework agreement, another provision requires that all derogations from this framework agreement not be valid, unless a different provision explicitly states that it is designed as a derogation and from which provision it departs. Indeed, unless otherwise stated in this agreement, it says: “This provision may well be exceeded by another provision of this treaty.” (This is the equivalent of anything in this agreement against the contrary, which means that this provision may well exceed some other provisions of this treaty.) You will make things clearer for the reader if you refer the reader to another provision that would nullify the provision in question.