This contract tip is about the strategic use of recitals.
Recitals provide basic context about the contract. A typical recital reads:
"Whereas, Seller makes widgets and desires to sell them to Buyer. Whereas, Buyer desires to buy widgets from Seller. Now, therefore,..."
Yawn.
This approach states the obvious and feels so pointless.
But recitals can be used more creatively to advance your client's goals by using recitals to tell our version of the deal.
Consider this different approach to the same recital:
"Buyer desires to engage Seller to design, manufacture, supply, and service Widgets for integration into Buyer's fire-resistant residential roof safety products."
With this draft, the buyer has included a description of its intended use of the widget IN THE CONTRACT.
Yes, there's probably a disclaimer of any implied warranty of fitness for a particular purpose. And yes, parol evidence rules may prevent or limit evidence of what was discussed during negotiations about the buyer's intended use.
But we don't always need to rely upon a warranty or parol evidence admission to help our client's case. We've got it in front of the executives, judge, or arbitrator. And, even more importantly, this characterization was agreed to by the seller in a signed contract.
Always consider what story you want your recitals to tell.
Do you have any other techniques you like to use when writing recitals?
