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I was noticing on some contracts it says "attached is a 2 page addendum with 15 terms".

Say the addendum states "if a discrepancy is found between this addendum and the rest of the contract, the addendum takes precedence" or other such meta information. Does this count as a term?

For example in a residential lease, would the bellow addendum have two or three terms (not sure if the last counts)?

Addendum

  1. tenants are responsible for yard maintenance
  2. tenants are not allowed pets
  3. if a discrepancy is found between this addendum and the rest of the contract, the addendum takes precedence

or should it be

Addendum

If a discrepancy is found between this addendum and the rest of the contract, the addendum takes precedence

  1. tenants are responsible for yard maintenance
  2. tenants are not allowed pets

Another example is a severability clause ("if something is unenforcable, the remainder remains enforceable"), would that count as a term?

  • Why would it matter? – phoog Mar 4 '16 at 7:03
  • @phoog I've seen in the main body of contracts "attached is a 3 page addendum with 15 terms". I guess they have this so it's harder for someone to cheat and write a different addendum and claim it's the one that should be included in the contract, when a dispute arises. So say an addendum that looks like the second one exists. Would someone say it can't possibly belong to a contract that contains 3 clauses as it only has 2 (depending on if you count the first part or not)? Let me know if that's not clear. – FunFacts12 Mar 4 '16 at 7:09
  • Short answer: usually those meta terms would count as binding parts of the contract but if it said "attached is a 3 page addendum with 15 terms" the question would be if the the real intent of the parties was to refer to the actual addendum provided to the court, and if it was, the actual addendum would be given full effect regardless of how many terms it actually had. A discrepancy would be evidence of a possible falsification but would not be controlling. – ohwilleke Dec 1 '16 at 6:43
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In theory, all counts as a term to what the parties agree in between themselves. That follows the liberal Common Law doctrine of freedom of contract (i.e. let the parties decide for themselves what they wish to be bound by). However, the enforceability of such terms then depends on if such term was to be viewed (by a judge) as a condition to the contract or as a mere warranty, each with different effects of breach. For breach of a condition, the injured party may sue for contract rescission (end of contract) and damages in consequence to that. For a breach of warranty, the injured party may only sue for damages in consequence. Ultimately, it depends on the individual details of the situation for anyone (even a qualified lawyer) to give any opinions. And even in that case, not even his opinion is final or ultimate in any way; it all depends much on what is deemed as reasonable in those given circumstances.

In Land law, there are further extensions as to what a tenant may or may not do, and what the landlord them may and may not do in case there is a breach. It also depends if to what legal interest (what property right) is in question (if tenancy to an estate land, i.e "ownership" for certain specified years, or if that is mere short-term tenancy, i.e. rent). Sometimes, a term can be severed from the contract by implication of Common Law, however only a solicitor can help further more for the Devil is in the detail in such cases.

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