The parties must pay attention to the application of an entire contractual clause. Such a clause is often found in commercial contracts and prevents the above statements or assurances that are not expressly included in the contract from having legal effect. In order to ensure that any relevant information or representation in the recitals does not conflict with an entire clause of the agreement, the recitals must be explicitly included in the agreement. Another approach could be to determine that an entire contractual term applies “unless the context requires otherwise”. However, such a qualifier is vague and may not be desirable as it can promote uncertainty. NB: The preambles should not be confused with the preliminary rounds. For more information, see Difference between preparatory work and preambles Pre-contractual negotiations (the evidence of which can be included in recitals) are generally inadmissible as a construction tool in contractual disputes. In English law, there is a (rebuttable) presumption that a written contract contains the entire agreement between the parties (the “exclusion rule”)2. However, pre-contractual negotiations may be allowed to establish facts relevant to the context of the contract3, such as.B. the business objective of the company.
The information contained in the recitals that could help a court or arbitrator to establish the context could therefore be used in a dispute. This leads to the question of which parts of the contract constitute exactly the legally binding agreement, with reference to the express provisions agreed between the contracting parties. If the answer to this question is not the Treaty as a whole, then it should be clear where legally binding obligations begin and end. Where commercial contracts contain a pre-operative recital, the recitals are often among the sections of the contract least taken into account by the parties during the drafting phase. There is a widespread perception that the recitals are legally irrelevant, given that their role is in principle `scenography` and are not automatically part of the operational and legally binding agreement between the parties. .