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Karen’sKorner

Enforceabilty

Inserting lists into contracts:

Clarity

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Karen’sKornerInserting lists into contracts:

Clarity

Enforceability

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Karen’sKornerInserting lists into contracts:

Use clear words.

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Karen’sKornerONE VERY IMPORTANT CONCEPT:

Agen

t Liab

ility

Ambiguity

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Karen’sKornerFor example…

Seller

The water pressure regulator is not functioning properly.

Buyer Inspection Notice

The garbage disposal is not functioning properly.

The roof leaks in a few places, per the inspection report.

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Karen’sKornerAfter seller bites your head off…

Seller Will

Replace the water pressure regulator;

Repair the garbage disposal;

Repair the roof where it is now leaking into the hallway bathroom.

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Karen’sKornerIf a court needs to enforce either of the two lists…

Anything that is not specifically in the list is intentionally excluded.

Rule of Negative Implication

Intent of the parties

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Karen’sKornerIf a court needs to enforce either of the two lists… Therefore… a

court will likely rule thatSeller is obligated to replace the water pressure regulator and repair garbage disposal.

Because the inspection report is not incorporated into the list of items disapproved, it must have been intentionally excluded by the buyer’s agent.

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Karen’sKornerIf a court needs to enforce either of the two lists…

Because the seller obligated himself to ONE specifically-identified roof repair, he must have intentionally excluded any verbiage that obligates him to repair any other specific places on the roof.

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Karen’sKornerNinja Rules to live by

when making lists

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Karen’sKornerNinja Rules to live by

when making listsDon’t mention documents in a list without incorporating the document into the list:Incorrect: The roof leaks in a few places, per the inspection report.

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Karen’sKornerNinja Rules to live by

when making listsDon’t mention documents in a list without incorporating the document into the list:Correct: The roof leaks in a few places, as depicted on page 4 of the inspection report. Page 4 of the inspection report is attached to this document and incorporated herein by reference.

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Karen’sKornerNinja Rules to live by

when making listsKeep in mind that anything left off of the list will likely be considered intentionally excluded.

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Karen’sKornerNinja Rules to live by

when making listsDon’t use the words “including, but not limited to…” These words are completely unenforceable – because these words are ambiguous.

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Karen’sKornerNinja Rules to live by

when making listsDon’t use the term “and/or”. Use either and or or.