Amendment notes

(See also the sample clauses.)

Amendments-must-be-in-writing clauses might be disregarded

The sample clauses contain language to the effect that all amendments to the agreement must be in writing. This kind of language is found in many contracts.

In some jurisdictions, though, the presence of a clause like this will not necessarily end a dispute whether an agreement was amended orally. In a case involving Shell Oil Company, a group of dealers claimed that Shell had orally represented that a rent subsidy would not be terminated except in a situation such as a war or an oil embargo.

• When Shell’s successor terminated the subsidy, the dealers sued, arguing successfully that Shell’s alleged oral representations had the effect of amending the franchise agreement, even though the agreement had an integration (‘entire agreement’) clause.
• The appeals court affirmed; it cited Massachusetts law to the effect that “the question of integration is one of fact reserved for the trial judge, whose resolution of that issue will not be reversed unless clearly erroneous.” Marcoux v. Shell Oil Prods. Co. LLC, 524 F.3d 33 (1st Cir. 2008) (citation and internal quotation marks omitted).

Under the Uniform Commercial Code, specifically UCC 2-209, in a contract for the sale of goods, “A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.”

Stray communications might be held to constitute “amendments”

The sample clauses include language requiring any amendment to expressly refer to the agreement. The intent is to avoid claims that “stray” language constitutes an amendment.

For an example of why this might be needed, see Stevens v. Publicis, S.A., 2008 NY Slip Op 02880 [50 AD3d 253]: A New York appellate court held that an exchange of emails, in which each email included the typed name of the sender at the bottom of the message was sufficient to modify an employment agreement. See also Alix R. Rubin, Entwistle & Cappucci LLP, Counsel Beware: A Few Keystrokes May Modify An Agreement (accessed July 18, 2008).