A frequently used boilerplate clause is commonly referred to as “further assurances” and addresses the parties’ duty to cooperate in certain aspects. Especially in a common law context, where the common law lawyer might not believe that contracting parties must enable each other to reap the full benefits of the contract (and a little more), such a duty to cooperate ‘beyond’ the key obligations and explicit covenants can be helpful. This blog post is about the no-need to include a further assurances provision.
The general concept of good faith, which is a core concept of EU member state laws (although not under common law jurisdictions), makes it largely superfluous to include a miscellaneous clause on ‘Further assurances‘. Nevertheless, sometimes it may be helpful to provide for such ‘duty to cooperate’. For instance, the clause may support a party’s request when it must prove its rights under an agreement versus a third party or if the enforcement of a party’s rights requires the fulfilment of any legal or practical formality. Such clause may be as follows:
Further Assurance. Each Party shall cooperate with the other and execute such instruments or documents and take such other actions as may reasonably be requested from time to time in order to carry out, evidence or confirm their rights or obligations or as may be reasonably necessary or helpful to give effect to this Agreement.
You should be aware that if you delete the clause in a mark-up on the other party’s first draft, or if the other party deletes yours, this may convey a sense of unwillingness to cooperate.