0

The Recitals shall be part of this Agreement.

What is the purpose of including such a clause in an agreement?

Is there any legal effect above and beyond not including that phrase? If so, what is it?

1

What is the purpose of including such a clause in an agreement?

The phrase itself is pointless and obvious unless the recitals are not detailed in the same document of the agreement. By default, everything that is included in a contract or agreement constitutes --or is presumed to be-- part thereof, whence there is no need to make that legal truth explicit in the agreement.

Recitals clarify the reasons, intent, and scope the parties had in mind for the contract. A statement in the contract akin to "The Recitals shall be part of this Agreement" does not modify, restrict, or expand whatsoever the legal effect or relevance of those recitals.

The inclusion of that type of statements seemingly stems from the draftsman's misconception that recitals have "no legal effect" and therefore "would need to" be heightened in an agreement. This misunderstanding is pointed out in The Law of Recitals in European Community Legislation, p.72:

In American contract law, it has been said that parties commonly believe that recitals have no effect (whatsoever) and that there is even some case-law to this effect (although it is understood to be erroneous). This has given birth to the curious (and, as aforesaid, erroneous) stance of some courts that a recital, to have any effect at all, must be referenced in the operative provisions of the contract

(emphasis and italics added). As part of his misconception, that draftsman might not even realize that he would rather prefer to state that recital(s) "be part of the operative portion of this Agreement" since recitals are part of that agreement beforehand.

| improve this answer | |

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.