Notices clauses - Weagree

Notices clauses

Notices clauses serve various purposes, for example, they state where the addressee wishes to receive the execution copies of the contract, and identify the corporate departments for various types of notices in connection with the contract performance (e.g. account manager, quality complaints, product delivery, claims, IP-infringement). Normally, contact persons know how to find their day-to-day contacts (and otherwise, there is always a website with phone numbers); they will probably consult their internal predecessor rather than the contract itself for contact details of the other party in a certain case.

On to the use of indentation, inserting the addresses is often a messy affair. Also, putting the parties underneath each other makes the clause span over various pages (with arbitrary page breaks) and an inefficient flow of information. The best way is to use a table (without showing the table borders in the printed version):

In respect of Weagree, to:
P.O. Box 12345
1070 AB  Lutjebroek
The Netherlands

In respect of Willem Wiggers, to:
Vondelstraat 11H-4a
1054 GC  Amsterdam
The Netherlands

Time of satisfaction. From a legal point of view, the time of fulfilment of the notice requirement is relevant. Where the timing of a notice is of the essence, it does make sense to stipulate that a notice shall be deemed to be delivered upon the notice being delivered to a courier service of international repute, provided that the notice was also faxed or sent as a scan attached to an e-mail. What matters is whether the applicable law follows the ‘receipt theory’ or the ‘dispatch theory’ to determine if a message was on time. The Common Frame of Reference adopts the receipt theory:

II. – 1:106: Notice

(1)  This Article applies in relation to the giving of notice for any purpose under these rules. “Notice” includes the communication of a promise, offer, acceptance or other juridical act.
(2)  The notice may be given by any means appropriate to the circumstances.
(3)  The notice becomes effective when it reaches the addressee, unless it provides for a delayed effect.
(4)  The notice reaches the addressee:
(a)  when it is delivered to the addressee;
(b)  when it is delivered to the addressee’s place of business, or, where there is no such place of business or the notice does not relate to a business matter, to the addressee’s habitual residence;
(c)   in the case of a notice transmitted by electronic means, when it can be accessed by the addressee; or
(d)  when it is otherwise made available to the addressee at such a place and in such a way that the addressee could reasonably be expected to obtain access to it without undue delay.
(5)  The notice has no effect if a revocation of it reaches the addressee before or at the same time as the notice.
(6)  Any reference in these rules to a notice given by or to a person includes a notice given by or to a representative of that person who has authority to give or receive it.
(7)  In relations between a business and a consumer the parties may not, to the detriment of the consumer, exclude the rule in paragraph (4)(c) or derogate from or vary its effects.

You may need to give some practical consideration to what you require in the notices clause. When a notice is urgent, a phone call is much more efficient than initiating communication by sending printed letters, which is often required to be sent by registered mail or overnight courier. Please note that in many jurisdictions, the registration of registered mail ends after crossing the national border. This makes a requirement to use registered mail useless. In other cases, the national and traditional post appears to be slower than going there by bicycle. Further, an overnight courier implies 24 hours delivery service but is still five to ten times more expensive than the regular 48 hours delivery service. Whilst an attorney-at-law may be concerned that, in case of claims, the other party sticks to the strict wording of the notices clause; can you imagine a court disregarding the fact that complaints were subsequently reported by phone (answered by the right person) and by e-mail (between the account managers) in addition to a formal notice being served (signed and attached as pdf to an email) because the contract required overnight courier services if the notice was not handed over in person?

Many addressees and many disciplines involved. In a framework of several interrelated contracts, it may be worthwhile creating a notices schedule to the agreement, in which the names of the contact persons of the disciplines involved are collected.

More persons on one side. In M&A transactions it is often desirable to stipulate that all purchasers or all sellers act in concert, or that notice by one of them shall be deemed to constitute a notification on behalf of all the others. This places the responsibility for communications with one party and prevents the other party being burdened by a variety of different positions and statements none of which is conclusive. This can be achieved by:

A notice by Seller to any or all Purchasers shall be deemed given upon the receipt by any one of the Purchasers. A notice given by any Purchaser to Seller shall be deemed to be the joint notice of all Purchasers. In case of several notices given by several Purchasers, Seller may deem the first notice received by it to constitute the joint notice of all Purchasers.

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