Thanks, that’s an interesting idea, and not one I’ve seen before.
2 potential issues come to mind:
1. As you noted, a key goal is to reduce ambiguity as much as possible. An enforced scope provision opens up the possibility that a court will nullify another provision for being in the wrong place. This adds ambiguity to the contract, especially because at first there wouldn’t be any court decisions on how they interpret enforced scope provisions. I’m not sure off hand how serious of a problem this would be—maybe the dividing line between covenants and representations is clear enough that no provision might be interpreted to create both, for example.
2. Unlike software development (I expect), negotiating contracts is somewhat adversarial. Adding new types of provisions, or even deviating from common (“market”) language on a given topic raises an inference that you’re trying to pull one over on the other side. That is, adding an enforced scope provision could be seen as an indication that you think there’s some other provision that might be invalidated to your advantage.
These both weigh against creativity in contract drafting, which helps explain why there’s so much copy and pasting of precedent contracts.
Thanks, that’s an interesting idea, and not one I’ve seen before.
2 potential issues come to mind:
1. As you noted, a key goal is to reduce ambiguity as much as possible. An enforced scope provision opens up the possibility that a court will nullify another provision for being in the wrong place. This adds ambiguity to the contract, especially because at first there wouldn’t be any court decisions on how they interpret enforced scope provisions. I’m not sure off hand how serious of a problem this would be—maybe the dividing line between covenants and representations is clear enough that no provision might be interpreted to create both, for example.
2. Unlike software development (I expect), negotiating contracts is somewhat adversarial. Adding new types of provisions, or even deviating from common (“market”) language on a given topic raises an inference that you’re trying to pull one over on the other side. That is, adding an enforced scope provision could be seen as an indication that you think there’s some other provision that might be invalidated to your advantage.
These both weigh against creativity in contract drafting, which helps explain why there’s so much copy and pasting of precedent contracts.
Thanks, I was hoping someone would leave a comment along these lines. Definitely helps me understand the underlying drivers better.