This clause never goes away:
No modification, variance, or waiver of this Agreement is valid unless in writing and signed by both parties.
Well, what's wrong with this clause? It facially makes sense. The parties should have the freedom of contract to agree as to how changes to their agreement can be validly made going forward. A writing requirement goes a long way to insulate the parties from fraudulent or frivolous oral claims.
And yet, preserving party autonomy compels the conclusion that whatever agreement may have been made before, it can and must be allowed to be unmade if the parties had the sufficient meeting of the minds to do so.
Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived … What is excluded by one act, is restored by another. You may put it out by the door, it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again….
Beatty v. Guggenheim Exploration Co. (New York Ct. App. 1919) (Cardozo, J.).
Of course, the parties should be free to unshackle themselves from the bonds of the past if both are willing and have demonstrably assented to the terms of the oral variation.
Since these clauses are essentially worthless at achieving what is intended – the preclusion of oral modifications to the contract – why should/do we still include them?
Is this just another legacy contractual anchor, weighing us down?
Not quite. Learn more.
