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Negotiation Of Clauses Comparison Chart Notes

LPC Law Notes > Private Acquisitions Notes

This is an extract of our Negotiation Of Clauses Comparison Chart document, which we sell as part of our Private Acquisitions Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Private Acquisitions Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Negotiation of Clauses Original Wording Reliance on representations

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Buyer would be able to claim under misrepresentation for any representations or statements made in the agreement

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Ability to bring a tortious claim (reliance on representations) where damages is more favourable to the buyer and there is the ability to rescind the contract

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Tortious damages are to put the buyer in the position he would have been in had the harm not occurred, and do not need to mitigate loss (need to prove inducement and reliance) Not there

New Wording Deletion of representations

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Buyer accepting that it has not relied on any representations and therefore reducing the ability to bring a tortious claim

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Can only bring a contract claim where there is no ability to rescind and there is a duty for the buyer to mitigate their loss and can bring a claim for damages (must be breach and causation) only to put them in the position they would have been in had the contract been properly performed

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Better wording for the seller would be to even remove in reliance on the

Compromise This is already a compromise, seller has kept in in reliance on and the buyer hasn't include the phrase and inducement

Entire Agreement Clause

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Can only claim for misrepresentation on the warranties in the agreement - Entire Agreement Clause

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Limiting liability to exclude any outside statements or oral statements Not there Removing Rescission as a remedy Can only claim for damages rather than claim rescission or termination of the agreement after completion Jointly & severally Removal of Joint & Several and replace Buyer would be able to sue any 'sellers' with 'warrantors' seller for the whole amount

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Sellers are limiting their liability as the and not the buyer's concern minor shareholders and the trustees are highly how the sellers would sort it unlikely to be willing to be liable for the full out amount, but rather only for their amount

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Define Warrantors

Heavily linked to Clause 18 of the main agreement. If clause 18 if kept in the main agreement then clause 2.5 isn't so necessary

Represent and warrant Buyer wants the widest possible range of remedies including misrepresentation Full and fair disclosure with sufficient details

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Achieve high standard of disclosure

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New Hearts - want sellers to provide the buyers will all information

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Farin - "save as

Deletion of represent and warrant Exclude claims for misrepresentation Deleted full limiting the extent of disclosure Deleted with sufficient details and added disclosure bundle

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Again limiting disclosure obligations - pushing risk and obligation to review the disclosure bundle on to buyer

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Allocation of risk to the buyer

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Seller trying to drag the burden of

Only make specific warranties as clear representations and all the rest are contractual terms

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Sellers cannot really remove joint & several

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Deed of Contribution (Side agreement) Limiting liability to the amount of consideration that the sellers themselves received

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Cannot advise conflicting sellers Put back in and emphasis entire agreement clause

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The word fair has been kept in but the buyer is likely to insist upon full disclosure

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Whatever standard of disclosure you agree will be the level that the courts apply -

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