(b) Except as otherwise provided in the treaty, a merger clause shall not preclude recourse to prior declarations by the parties on the interpretation of the treaty. The fact that two parties have knowingly and deliberately entered into contradictory agreements can only complicate the task of identifying the legitimate intention of their contracts. In a context where the legal relationship is so unclear, things can go wrong if the dispute is settled. It is therefore not in the best interest of the parties to undertake to comply with erroneous clauses. “This letter is understood and shall be the final expression of the agreement concluded by the parties and constitutes a complete and exclusive statement of the relevant terms, which replaces all prior or written oral or written agreements or assurances and any other communication between the parties concerning the subject matter of this agreement.”; 4. Previous agreements and breach of agreement – Finally, when entering into a contract, the parties should check whether agreements were concluded before the treaty and should be included in such a contract. If so, this should be done by making explicit reference to this agreement and integrating it into the new treaty. If this has been done correctly, a whole contractual clause will not exclude it. If, for any reason, the prior agreement is not explicitly included, this prior agreement may, in certain circumstances, give rise to a legally binding obligation, notwithstanding the fact that the contract contains a full contractual clause.
This is due to the doctrine of waiver by agreement, which was recently investigated in relation to entire contractual terms in Mears Ltd v Shoreline Housing Partnership Ltd3. In summary, parties should ensure that they are clear in advance about what has been included and excluded before it is executed. As we have seen, it is often necessary to introduce additional clauses into the Treaty in order to exclude tacit clauses or pre-contractual assurances or to include certain pre-contractual agreements. Otherwise, a simple misunderstanding could lead to costly litigation. First, such a clause does not prevent the parties from invoking statements or documents that are “extrinsic” to the contract – that is, documents that can be used to clarify the importance of the contract (although such extrinsic documents cannot be used to establish a separate contractual agreement between the parties). For example, a New York insurer used this reasoning to convince a federal court to allow updated data sheets issued after a contract had already been concluded, despite an integration clause in the original agreement. . .