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FLORIDA - I am negotiating an addendum to a Franchise Agreement and am
a bit confused. The first sentence of the addendum (as supplied by the
franchisor's lawyer) reads:
"Notwithstanding anything to the contrary in the Franchise Agreement,
the parties hereby agree as follows:"
I requested a modification to:
"The parties hereby agree to the following modifications to the
Franchise Agreement:"
which was rejected by the franchisor's lawyer. What I am confused
about is that the prupose of the addendum is to override language in
the Franchise Agreement. Yet, the wording they are proposing seems to
me to state that the Franchise Agreement supersedes that addendum. As
I wrong?
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berg@tampabay.rr.com (Ken Berg) wrote:
FLORIDA - I am negotiating an addendum to a Franchise Agreement
and am a bit confused. The first sentence of the addendum (as
supplied by the franchisor's lawyer) reads:
"Notwithstanding anything to the contrary in the Franchise
Agreement, the parties hereby agree as follows:"
I requested a modification to:
"The parties hereby agree to the following modifications to the
Franchise Agreement:"
which was rejected by the franchisor's lawyer. What I am
confused about is that the prupose of the addendum is to
override language in the Franchise Agreement. Yet, the wording
they are proposing seems to me to state that the Franchise
Agreement supersedes that addendum. As I wrong?
You've got it exactly backwards. The original language means,
"dispite what the Agreement says, the modification governs in case
of a conflict."
While the language you proposed in practical effect probably means
the same, lawyers using an overabundance of caution want to be sure
that the modification means what it says.
Stu
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[cc'd to previous poster; follow-ups in newsgroup suggested]
In article <alq3vvs0suk9eaua3s5vlskgj88ub5uqgk@4ax.com> in
misc.legal.moderated, Ken Berg wrote:
FLORIDA - I am negotiating an addendum to a Franchise Agreement and am
a bit confused. The first sentence of the addendum (as supplied by the
franchisor's lawyer) reads: "Notwithstanding anything to the contrary
in the Franchise Agreement, the parties hereby agree as follows:"
I requested a modification to: "The parties hereby agree to the
following modifications to the Franchise Agreement:"
which was rejected by the franchisor's lawyer. What I am confused
about is that the prupose of the addendum is to override language in
the Franchise Agreement. Yet, the wording they are proposing seems to
me to state that the Franchise Agreement supersedes that addendum. As
I wrong?
Yes, I'm afraid you is. :-) The wording they propose says "Whatever
follows here in the new agreement overrides anything in the old
agreement if they are inconsistent."
Your wording says the same thing, as far as I can see, and says it
better. I don't know whether they're just being pissy in rejecting
it, or they truly believe that it's necessary to use that style of
drafting, or there's something I'm missing and they actually have a
good reason to reject your wording.
Anyway, their wording does say that what follows is an amendment of
the previous agreement.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com
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Ken Berg <berg@tampabay.rr.com> wrote:
FLORIDA - I am negotiating an addendum to a Franchise Agreement and am
a bit confused. The first sentence of the addendum (as supplied by the
franchisor's lawyer) reads:
"Notwithstanding anything to the contrary in the Franchise Agreement,
the parties hereby agree as follows:"
I requested a modification to:
"The parties hereby agree to the following modifications to the
Franchise Agreement:"
which was rejected by the franchisor's lawyer. What I am confused
about is that the prupose of the addendum is to override language in
the Franchise Agreement. Yet, the wording they are proposing seems to
me to state that the Franchise Agreement supersedes that addendum. As
I wrong?
Yes, you are wrong. It says that what follows is an agreement between
the parties (franchisee and the franchisor) and anything to the
contrary in the main body of the franchise agreement does not
"withstand" the modification.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
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FLORIDA - I am negotiating an addendum to a Franchise Agreement and am
a bit confused. The first sentence of the addendum (as supplied by the
franchisor's lawyer) reads:
"Notwithstanding anything to the contrary in the Franchise Agreement,
the parties hereby agree as follows:"
I requested a modification to:
"The parties hereby agree to the following modifications to the
Franchise Agreement:"
which was rejected by the franchisor's lawyer. What I am confused
about is that the prupose of the addendum is to override language in
the Franchise Agreement. Yet, the wording they are proposing seems to
me to state that the Franchise Agreement supersedes that addendum. As
I wrong?
It sounds like you've got the meaning of the "Notwithstanding" clause
exactly backwards. Basically, it means that even though the Franchise
Agreement may say something that appears to contradict the Addendum,
it is the Addendum that rules, "notwithstanding" whatever else the
Franchise Agreement said.
IMO the original phrase and the one you propose are functionally
equivalent except that your phrase is ambiguous (thru silence)
regarding what happens if the Franchise Agreement happens to say
something different than what you put in the Addendum. A court may
guess that your modification was intended to override the basic
Agreement, or it may not. More likely, the judge would find that you
simply failed to consider the issue. IMO that's why the atty prefers
the "notwithstanding" language, which avoids that confusion.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult a lawyer in a private
communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On Fri, 02 Jan 2004 09:10:43 -0500, mjacobslaw@comcast.net (Michael
Jacobs) wrote:
It sounds like you've got the meaning of the "Notwithstanding" clause
exactly backwards. Basically, it means that even though the Franchise
Agreement may say something that appears to contradict the Addendum,
it is the Addendum that rules, "notwithstanding" whatever else the
Franchise Agreement said.
. . . .
Furthermore, the word "modification" implies a change to a preexisting
agreement, instead of a variation from a form.
Daniel Reitman
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On Fri, 02 Jan 2004 09:10:43 -0500, mjacobslaw@comcast.net (Michael
Jacobs) wrote:
Furthermore, the word "modification" implies a change to a preexisting
agreement, instead of a variation from a form.
Daniel Reitman
Good point. If that's the case, all the more reason not to call it a
"modification." However, in Original Poster's case, it sounded like
he was only negotiating an "Addendum" to an existing Franchise
Agreement and not the whole Agreement from the beginning. Regards,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult a lawyer in a private
communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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