Making it stick

In 2010 a plethora of cases considered the enforceability of so-called non-reliance clauses (NRCs). These prevent one party relying on pre-contractual representations which may have been made by the other party. NRCs often form part of entire agreement clauses, which state that the contract contains all the matters agreed between the parties, superseding all pre-contractual written or oral agreements. However, a bare entire agreement clause will not defeat a misrepresentation claim; what is needed is that the claimant did not rely on the statement in question. This is achieved by an effective NRC.
This article examines the courts’ current approach to such clauses in the context of commercial contracts.

Introduction

NRCs come in different shapes and sizes, but typically they will contain one or more of the following: 

• X confirms/acknowledges/states that Y is not giving/has not given/is not deemed to have given any representations/warranties/assurances/undertakings;
• X confirms that it (X) is not entering into the contract as a result