Why Miscellaneous Contract Provisions Matter

August 14, 2024 by

By the time you reach the end of a contract, you typically find yourself encountering a series of miscellaneous contract provisions that are all too often given limited and insufficient attention. Don’t be too quick to gloss over them! While most of the provisions you encounter in the miscellaneous section appear to be boilerplate provisions, they can have a significant impact on your contract.

Here are five of the most important miscellaneous provisions and why each of these are so important:

  1. Notices – The “Notices” provision of a contract details how each party to the contract is required to give legal notice to the other parties and establishes a formal process for communicating regarding significant matters.
    • Why it matters – Notifications must be correctly given to be legally valid and enforceable. Need to notify the other side about a breach or about specific actions required under the contract by certain deadlines? You must make sure your communication is timely given, by the correct methods, and within the boundaries of the notice provision or your noncompliance could have the same effect as never giving notice to begin with.
  2. Governing Law – The “Governing Law” provision of a contract outlines which state (or country) law governs the interpretation of the contract.
    • Why it matters – This is quite possibly the most important provision inside the entire contract. Every state (or country) interprets contracts differently. By choosing a governing law that you’re familiar with and that you understand, you can know in advance which legal rules apply, how those rules might affect your agreement, and positively affect predictability while reducing uncertainty.
  3. Venue – The “Venue” provision of a contract, also known as a forum selection clause, is critical because it specifies the locations and courts where a legal dispute will be resolved.
    • Why it matters – By agreeing in advance to the venue, you can select a set of courts that will apply the law in a predictable manner, add convenience and cost efficiency by avoiding more expensive locations, avoid jurisdictions that might be unfavorable due to its procedures or interpretations, and provide a strategic advantage due to proximity, ease of enforcement of judgments, and reduce the risk of “forum shopping.”
  4. Severability – The “Severability” provision of a contract allows for a contract to remain enforceable even if one or more of its provisions are found invalid, illegal, or unenforceable.
    • Why it matters – By including a severability provision, the parties help to avoid creating an invalid contract at the expense of a single errant provision, preserving the remainder of a contract to remain in effect. The inclusion of this clause is critical to maintaining the intent of the contracting parties to minimize disruptions.
  5. Entire Agreement –The “Entire Agreement” provision, also known as a merger or integration clause, is critical to a contract because it establishes that the agreement being signed (along with any other contracts referenced in this provision) form the entirety of the agreement between the parties and supersedes any other agreements regarding the same subject matter.
    • Why it matters – The inclusion of this clause helps to ensure that any previous oral or written agreements, promises, or representations not included in the agreement but relating to the same subject matter of the agreement are not legally binding, which prevents either party from claiming earlier discussions or informal agreements make up part of the contract. This clause helps provide clarity by specifying which contract is the definitive agreement as to each party’s rights and obligations.

Miscellaneous contract provisions, though often overlooked, play a crucial role in defining how a contract is interpreted, enforced, and executed. Key provisions like those set forth above significantly impact legal obligations, predictability, and the overall enforceability of the contract, making it essential to carefully consider them during the drafting process.

If you have any questions about these contract provisions or contracts in general, don’t hesitate to reach out to us so we can help!


Joshua Mahaffey
jmahaffey@brownfoxlaw.com

Joshua Mahaffey brings a wealth of real-world, corporate experience to his client engagements. Prior to practicing law Mr. Mahaffey spent over twenty years in the transportation and logistics industry, with an emphasis on risk management. He often engaged and collaborated…Read More

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