Why You Need to Avoid Contract ClutterDec 10, 2021
Avoid inserting contract clutter like “that the parties may agree to change from time to time” or "unless otherwise agreed by the parties."
I see lawyers adding this phrase randomly after stating an obligation or referencing other documents.
That language is not necessary. I believe most lawyers know this.
Parties to a contract are always free to amend anything and everything. They do not need the contract to give that permission.
Some people view it as innocuous. They say, “It can’t hurt. Why not include it if the parties have that right anyway?”
Here are two reasons why I prefer not to add it to contracts.
1. It clutters up the contract
They add extra unnecessary words that create longer sentences, make it harder to read, and dilute the terms.
2. It creates ambiguity around the parties' obligation to negotiate changes
Under U.S. law, parties to a contract are subject to a duty of good faith and fair dealing.
This language creates the argument that the parties agreed to act in good faith to negotiate changes. After all, why else would it be in the contract?
If that is not your intent, you've created ambiguity. If it is your goal, then you should say that directly. Don't dance around the idea with this phrase.