respective successors and permitted assigns

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Successors and Assigns Contract Clauses (10,793)

Grouped into 395 collections of similar clauses from business contracts.

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WHAT DOES IT MEAN TO BE A “SUCCESSOR OR ASSIGN”

Tom Stilp JD, MBA/MM, LLM, MSC

According to Professor Ian Hurd at Northwestern University, Russia is not really a member of the UN Security Council because Russia is not a “successor” to the Soviet Union. Hurd, I. (2022). “Russia is not a member of the UN Security Council,” Chi. Trib. §1, p. 7.

Under Article 23 of the UN Charter: “The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council.” But the Soviet Union dissolved in December, 1991.

Why do we care about “successors?” Because the successor determines who is a party to an agreement – who benefits and who pays.

A clause providing for “successors and assigns” (the terms usually go together) is a common provision in all types of contracts, leases, purchase and sale agreements, and many other forms of agreements. First, an assignment (assuming it is not prohibited under the agreement), is a voluntary action by one party transferring its rights and obligations to a 3 rd party, usually someone outside the original agreement. That 3 rd party then “steps into the shoes” of the original party, as an “Assignee.”

A “successor,” however, is more broad. A successor can be voluntary (as through an assignment), involuntary, or without any action on anyone’s part, as by operation of law. A successor by operation of law occurs, for example, when one joint tenant on real estate dies and the interest of that joint tenant passes to the surviving joint tenant. In the later case, the surviving joint tenant is the “successor” in interest to the deceased joint tenant, by operation of law, without any further action needed.

A typical “successor and assigns” clause will say in sum and substance that: “This Agreement and all of the rights [benefits] and obligations [what you have to do to get the benefits] shall inure [fancy word for “transfer”] to the benefit of and be binding upon the parties, and their respective successors and assigns .”

Simply put, the successors and assigns are required to perform the agreement in the same manner, and to the same extent, that the parties would be required to perform it if no succession had taken place.

Having prepared thousands of agreements, and litigated issues involving “successors and assigns” in court, we can assist in all of your contract needs.

image cred: shutterstock

THE STANDARD OF REVIEW – WHY IT MATTERS FOR YOUR CASE

The Standard Of Review – How It Helps Your Case

Getting Rid of the “Successors and Assigns” Provision

17 June 2013 18 September 2006 | Ken Adams

[ Update June 17, 2013: Go here for the June 15, 2013 post about my article It’s Time to Get Rid of the “Successors and Assigns” Provision .]

[ Update April 12, 2013: For more recent posts about the “successors and assigns” provision, see “The ‘Successors and Assigns’ and Successor Liability” ( here ) and “The Illinois Appellate Court’s Problematic Take on the Traditional Recital of Consideration and ‘Successors and Assigns’ Provisions” ( here ).]

A standard ingredient of contract boilerplate is the “successors and assigns” provision. Here’s what a run-of-the-mill successors and assigns provision looks like:

This agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.

I’ve long considered the successors and assigns provision to be one of the abiding mysteries of contract drafting. After some research, I’ve decided to dispense with it. Allow me to explain why:

(For purposes of the following discussion, bear in mind that an assignment occurs when one party transfers to a nonparty its right to receive the other party’s performance. The transferring party is the “assignor”; the nonparty to whom the right is assigned is the “assignee”; and the party who must perform in favor of the assignee is the “nonassigning party.”)

When I want to research a contract provision that constitutes boilerplate, I generally start by consulting Negotiating and Drafting Contract Boilerplate (Tina L. Stark ed. 2003). That’s what I did in this case—it has a chapter devoted to the successors and assigns provision.

According to Tina’s book, the case law suggests that the successors and assigns provision could have up to five different functions. (That courts should have read so much into the successors and assigns provision suggests how problematic it is.) I list these ostensible functions below, along with my take on them.

1. To Bind an Assignee to Perform: According to Tina’s book, some courts have held that a successors and assigns provision in a contract binds the assignee of any rights under that contract to perform the assignor’s obligations under that contract. But such a holding is inconsistent with accepted law. Privity of contract dictates that whether the assignee assumes the assignor’s obligations would be a function of whether the assignee has agreed to do so. See 9-48 Corbin on Contracts § 871 (“But if the assignee is held to be bound by a legal duty to render the service, it will be because he expressed an intention to assume it when he took the assignment.”) The contract between the assignor and the nonassigning party would have no bearing on the issue, and a successors and assigns provision in that contract would be ineffective as a means of binding the assignee of any rights under that contract to perform the assignor’s obligations under that contract.

2. To Bind a Nonassigning Party: Tina’s book says that a second purpose of the successors and assigns provision is to restate common law to the effect that after an assignment, the nonassigning party is obligated to perform in favor of the assignee. This is indeed the common law. See 9-48 Corbin on Contracts § 870 (“The effectiveness of an assignment does not depend upon the assent of the obligor. If in other respects the assignment is good, his duty is now a duty to the assignee ….”). But why bother restating the common law? If a party is permitted to assign its rights under a contract, it’s obvious that the nonassigning party must perform in favor of the assignee—otherwise, being able to assign your rights would be of no value. Whereas it’s sometimes useful to state in a contract what would apply anyway—particularly when the parties might otherwise be unaware—doing so to this extent would seem excessive.

3. To Determine Whether Rights Are Assignable: Some courts have relied on the successors and assigns provision to determine whether a party may assign its rights under a contract. It’s standard practice to address that issue in a separate section; if you do so, you certainly wouldn’t need the inscrutable language of a successors and assigns provision, too. And if you don’t address assignment in a separate section, you’d be advised to dispense with the successors and assigns provision, lest a court look there for guidance on assignment.

4. To Determine Whether Performance Is Delegable: And some courts have relied on the successors and assigns provision to determine whether a party may delegate its obligations under a contract. The same considerations apply in this context as apply to the question of whether rights are assignable.

5. To Bind the Parties to the Contract: If you take at face value the traditional language of a successors and assigns provision, it indicates that the parties intend to be legally bound. Such a statement would be ineffective, as it isn’t a condition to enforceability of a contract that the parties have, or explicitly express, an intent to be legally bound. See MSCD 2.29 and Farnsworth on Contracts § 3.7.

So, to summarize, here’s what I think, from the drafter’s perspective, of the five ostensible functions of a successors and assigns provision: (1) ineffective; (2) too obvious; (3) wrong place to address this issue; (4) wrong place to address this issue; and (5) ineffective.

Tina’s book suggests that the problem with the traditional successors and assigns provision is that “the provision is so truncated that its objectives are veiled.” I, on the other hand, think that the problem is that it’s a provision without a useful purpose. That raises the question of how it has come to be a fixture in contracts.

Whenever you have a contract provision that serves no useful purpose and is incoherent to boot, somehow that helps ensure its survival—because drafters are unsure what function it serves, they’re loath to delete it. Take, for instance, the traditional recital of consideration—even though it serves no purpose ( MSCD 2.63–71 and this article ), you can still find it in a large proportion of contracts. I suggest that this phenomenon helps explain why the traditional successors and assigns provision hasn’t been put out of its misery.

Tina’s book offers an alternative successors and assigns provision, one that ostensibly “clarifies the provision’s purpose and application.” But the first two subsections of the alternative provision—the other two address ancillary matters—serve to perform two of the five ostensible functions described earlier in the chapter, namely functions 2 and 1, respectively. So while the alternative provision may serve to clarify its purpose, that’s of little use if one purpose would be to state the obvious and the other would be ineffective.

So you’d be better off omitting the successors and assigns provision from your drafting. It serves no useful purpose, it’s confusing, and its incoherence gives courts leeway to find in it what they want to find. And reworking it to make it clearer would only serve to make more apparent the lack of a useful purpose.

respective successors and permitted assigns

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting , and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

26 thoughts on “Getting Rid of the “Successors and Assigns” Provision”

Let me suggest a possible purpose for the “successors and assigns” clause – a variation on #1: To assure that, if either party sells all or substantially all of its assets (or merges into another firm), the asset sale (or merger agreement) will include a clause specifically committing the purchaser (or successor-in-interest) to continue performing the contract.

To be sure, the clause itself would have to be amended to make that purpose clear.

Robert: The provision you mention could indeed be a helpful one, but as you suggest you can’t possibly get there through the standard “successors and assigns” provision. Ken

I had assumed (and now question) that ‘permitted successors’ addressed the issue of a contracting party changing legal form (e.g., changing from an LLC to an S-corp).

Nestor: Often the first words out of a drafter’s mouth after any drafting mishap are “I assumed ….” :-) Ken

Ken, I think your article focuses too much on the ‘assigns’ part of the clause. A possible context where the ‘successors and assigns’ clause may be meaningful is in mergers: the company (A) that is merged into another (B) ceases to exist and its contractual relationships devolve upon the the company it is merged into (B). This is not an assignment and is therefore outside the scope of the section where you define whether consent is required. I am not an American lawyer but this would be treated under the law applicable in my country (Portugal) as a ‘legal succession’ and the clause would therefore clarify that the other party to a contract with (A) that includes such clause keeps all rights and obligations vis-a-vis company B. Luis

Luis: You’re seeking to attribute to the “successors and assigns” provision a function that would be redundant for contract purposes: under state statutory law, if Company A merges into Company B, Company B automatically assumes all Company A’s obligations.

And secondarily, as I explained in my original post, a contract between Company A and some other party would be an unpromising vehicle for imposing obligations on Company B.

Ken, I am very happy that I came across your article — I was actually researching this issue myself with respect to the scenario suggested above by Robert Sonenthal. In the matter I was recently working on there was a provision in a contract that was binding on the purchaser of a business and its “successors and assigns.” That party is now selling the business and the question was raised as to whether that provision would be binding on the new buyers in the context of an asset purchase agreement. In my view, the draftsman of the original contract may have had the intention of binding all future successors in interest, but this was not specified in the original contract. As you note in your response to Robert Sonenthal (which I agree with), I don’t see how you would be able to bind a future purchaser with the standard “successors and assigns” provision alone. Your article provided excellent authority in an area that most practioners do not stop to think about – thank you!

All of your points are all well-taken, rational and coherent; conceptually hard to argue with. That being said, I defer to what has worked, and continues to work, for me, which is the standard clause. Practicality is key to my practice. In my 25 years of law practice on behalf executives worldwide, I’ve found the standard successors-and-assigns clause, coupled with a cautionary reminder to general counsel of the employer that he/she should advise successors/assigns of this important obligation, or be potentially considered to have withheld material information, has gotten my clients where they want to go. In court, too, I’ve enforced the standard clause upon acquiring entities on a “knew or should have known with reasonable due diligence” argument. Though potentially rife with risks and imperfections, the standard clause invites universal acceptance, and generally works.

Al Sklover, SkloverWorkingWisdom.com

Al: When you look at change from the perspective of the needs of any given lawyer, change can seem counterproductive, even downright scary: expedience is the order of the day. But I have the luxury of looking at change from a broader perspective, and in that context, all that matters is your suggestion that my points are conceptually hard to argue with. If we fix the language of business contracts, life will be much simpler for the next generation of lawyers. Ken

I’ve given careful consideration to your thoughts. Are we to accept that the highest purpose is simplicity for lawyers (our generation or the next)? Although it has been said that “simplicity is the ultimate sophistication,” it is not, to my mind, the ultimate purpose. I don’t think I find change to be either counterproductive or scary; rather, I do seek every possible advantage for my clients, actual or perceived, for they are often the same. I think the highest purpose of the law is the welfare of humankind, however messy, disorderly or complicated that may be. Al Sklover

Al: Making order out of chaos is certainly a noble endeavour, but not if the lawyer is the one making the mess. I see plenty of advantages, and no disadvantages, to eliminating a profoundly confused provision and accomplishing the client’s goals more directly. Ken

Ken –

Could not another purpose of the clause be to prevent the non-assigning party from arguing it has no contractual privity with a successor or assignee in an action by the assignee to enforce the contract? Especially where another boilerplate provision typically provides that there are no third party beneficiaries to the contract, it would seem the “inure to the benefit of” clause still has value here.

Jim: I believe that you’re referring to reason number 2 above. Ken

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What about the case where one or more of the parties to the agreement are individuals, one of the parties dies, the agreement does not contain the successors and assigns provision (is completely silent on this issue), and the agreement does contain a restrictive covenant (non-compete/non-solicit/non-disparagement) provision. Would the restrictive covenant be enforceable against the estate of the deceased party—even if the agreement otherwise terminates on the death of a party?

And how does your suggestion gel with the recent decision of the Supreme Court of Ohio: Acordia of Ohio, L.L.C. v. Fishel, Slip Opinion No. 2012-Ohio-2297?

I completely agree 100% with your posts and comments. I am a transactional attorney for a large bank (Big Bank) that recently acquired a smaller bank (Small Bank). Small Bank has a lot of master agreements with customers, and my documentation clients always ask me if it is ok to execute new schedules under Small Bank's master agreements. I always tell them yes, that we are now the party to that contract as successor to Small Bank. Imagine my surprise when I came across this article. I think this is just bad court decision, but don't you find it concerning? Would love to hear your thoughts. http://skloverworkingwisdom.com/blog/index.php/th …

If this provision is included in a rental agreement, and one day some lawyer emails me saying they’re representing the landlord, is that enough. Shouldn’t the landlord hv to tell me first. How do I know they’re really representing the landlord, if I wasn’t told by them. Also, my lease has a non- reliance clause stating- Both Tenant & Landlord acknowledge that they have not received or relied upon any statements or representation or promises or agreements or inducements by either Broker or their agents which are not expressly stipulated herein. If not contained herein, such statements, representations, promises, or agreements shall be of no force or effect.This non-reliance clause shall not prevent recovery in tort for fraud or negligent misrepresentation or intentional misrepresentation. Blah blah blah. There’s more, but I’m not sure its relevant. . What happend to me is a complete retaliation. Besides my landlord breaching a few sections of our lease & a cpl laws. He has 1 of the best lawyers. They just pretty much almost & might be able to evict me. Though my 1 year lease was up July 31, my lease says it will continue month to month. The owners of my condo also emailed me that. But, I had a huge problem being exposed to mold. I was deathly ill for 6 + months. I hv a compromised immune system & am on disability. I was fighting with them for a cpl months to properly remove the effects areas. Finally, I gave them a certified letter giving them th 14 day remediation time. Thats when this lawyer- no it was the lawyers secretary- sent me, just an email, stating several outright lies, that I hv proof of, horrible insinuations, & then told me my lease will not continue to go month to month– OBVIOUS RETALIATION. I paid for Aug, through certified mail. They sent the check back with a letter stating I need to leave. Then they were evicting me for non payment. The judge wldnt even look at any of my proof. I’m disables, my son( lives in Pa) just lost his baby( I had to go back), my rib went out of place twice- this all in July. I’m in myrtle beach, by myself. He still only gave me only 3 days to get out. I cldnt believe it. Disabled & nowhere to go. They were delaying me in finding a place by doing this & something else in April. Anyway, with very bad advice from the S.C.L.S( they cldnt even get who was the plaintif & who was the defendant right), I was like a half hour from getting the appeal filed in time. The Sherriff said, too bad, I had to get out. Well, after an hour of crying, nowhere to go & nowhere to put my things, they finally let me file the appeal. Not sure its going to work though…… ….. Sorry, for the book, just to ask one question. Any help wld be very much appreciated.

I think it is pretty much same as the World Bank Sanctions Procedues, which contains Successors and Assigns Clause (Section 9.04. (c)). The difference is that Parties in the latter case may appeal against the decision of the Bank to impose sanctions on certain successor or assignee.

I read a great deal of deeds and easements in the course of my work. I assumed that “successors and assigns” preserves the chain of custody of real property and the conditions of the deed unless it is changed in subsequent deeds. For example, a landowner grants an easement to Bell Telephone company in 1964, which is recorded on the deed. The property changes hands 3-4 times, but the easement still exists because the subsequent owners are successors. In addition, the “Bell” companies merge and change their name to Verizon. It’s still their easement, even if it is not re-recorded. This has been the case as far back as I have read deeds in my county (1920’s). Does this not have merit in that case, or is this different than what you are referring to? I would agree that in contracts for services (ie – construction), “successors and assigns” is fairly weaker and should not take the place of enumerating who you are trying to oblige. But when you don’t know who the parties may be, I probably wouldn’t leave out.

When considering the function that a contract provision serves, a good rule is “Assume nothing.” Beyond that, drafters have the power and the responsibility to address any issue clearly and directly. If you want to accomplish something relating to the chain of custody of real property (a subject I know nothing about), address it directly instead of by using a mystery phrase like “successors and assigns.”

sounds patriartifcal.

“But why bother restating the common law?”

Because the common law changes, and varies from country to country. If you intend for the contract to last a really, really long time (certain contracts involving land and institutions have lasted for over 500 years and survived complete changes of government and even of the underlying legal system), you really want the interpretation to be in the contract so that it will outlast changes of the common law.

Looks like caselaw in employment contracts may be against you on #1.

https://skloverworkingwisdom.com/the-successors-and-assigns-clause-without-it-all-can-be-lost/

Some better-written samples in corporate law — specifically, ones which cover transfers of “substantially all of the business or assets of” a company: https://www.lawinsider.com/clause/successor-to-company

And it appears to matter massively in the question of whether an estate is obligated to perform duties of the contractor, again a case of #1 — the executor *can* be bound by the contract:

https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2019/january-february/can-boilerplate-raise-contracts-the-dead-the-grave/

It seems like this really shouldn’t be boilerplate, because the courts appear to have a history of ignoring the boilerplate.

But it also seems that it’s exceptionally important to specifically say what is and isn’t binding on successors and assigns. I wouldn’t leave it out, but you need much better boilerplate than the one quoted here.

That provision is in a waiver my father is being asked to sign, indicating he will not sue the driving examiner he will be in the car with during a pandemic. He did not ask to have this test. He is being told to take the test. In this situation I assume this means they are asking him to sign away rights for his whole family? Is that legal? Thanks

Would successors and assigns phrase apply to a lessee?

Or would you need to have subsidiaries and affiliates?

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“Successors and Assigns” Clause – Probably Valuable, If Correctly Written

Post author: Alan L Sklover
Post published: 07/15/08

“Carelessness is worse than theft.”

– Gaelic Proverb

ACTUAL CASE HISTORY: Shortly after college, at age 23, Simon was hired by a family-owned real estate development firm as a Project Manager. At first he was given rather simple tasks, like making sure that “punch list” items – those last, small items on every job, such as replacing cracked windows and burned-out light bulbs – were attended to. With his attention to detail and rare perseverance, Simon’s reputation as a good employee blossomed. By age 29, he was supervising construction crews and overseeing condo sales teams. And as his responsibilities grew, so did his compensation. By age 31, Simon’s annual salary and bonus exceeded $200,000.

To keep Simon motivated, each year he was awarded bonuses of $100,000, to be paid to him $25,000 per year, for four years, in the last week of December. To discourage Simon from going into business for himself, the company’s owners promised him he would be an owner of at least 20% if he stayed another five years. A written employment contract was prepared for Simon to sign. It was to last 5 years. After his cousin Barbara, an immigration attorney, reviewed and approved the contract, Simon signed it.

Two years later the family that owned the company was offered $25 million for it by a publicly-traded REIT (shorthand for real estate investment trust.) The REIT was going to do an “asset purchase,” which means that Simon’s company would be selling its assets, not the stock of the company, itself, a common way to buy a business. The family members were elated. Simon was concerned; he wanted to know what this meant for him. After all, he wasn’t really “family.” He was assured that this would be a great thing for him, too. He even met with his new bosses, and they seemed to be true professionals.

After the sale of the business’s assets, Simon was given greater responsibilities, and oversight, as the old crew became a new division of the REIT. He was confident that things would go quite well. When Christmas time came around, Simon was waiting for word regarding when he would receive the “first” $25,000 installment he was owed for last year’s bonus, and the “second” $25,000 installment he was due from the bonus of the year before. When he was told “There must be some mistake, because we don’t give bonuses,” his heart sank. Then Simon inquired about the 20% of the company that he was to receive in two years. When he was told “You must be confused,” his heart skipped a few beats. He was crestfallen.

After “the lawyers did their thing,” Simon learned that those two big promises in his employment contract – for his $100,000 bonuses, and for his 20% business ownership – were promises of the “old” company, not the “new” company he now worked for. If he was to collect on those promises, he had to collect from the old company. Problem was, there was no more “old” company to collect from. The company, itself, had no more assets; all had been sold. The monies derived from the sale of the company’s assets were divided up among the 23 family members, who lived in states from Maine to California. While each family member he spoke with was sympathetic, none was willing to pay him from their own pockets. Instead, each suggested “Speak to your lawyer.”

While his lawyer, Cousin Barbara, couldn’t seem to explain what had happened, she sure seemed upset. Simon had lost $175,000 in bonuses, but far, far worse, 20% of a $25 million company, worth $5 million. A big loss, and an easily avoidable one, at that. All because one single, simple sentence was missing from his contract: the “Successors and Assigns” clause.

If only they’d added a sentence that read something like this: “The rights and obligations of the parties to this agreement will be binding on, and will be of benefit to, each of the parties’ successors, assigns, heirs and estates.” That would have made the “successor” REIT bound to the agreement (and benefit Simon’s estate, if he passed on.) One simple sentence can be worth so very much.

LESSON TO LEARN: An agreement binds only the parties to that agreement. Most agreements are between two parties: in sales agreements, they are the (a) buyer and (b) seller; in lease agreements, they are the (a) landlord and (b) tenant; in employment agreements, they are the (a) employer and (b) employee. No one else is bound. Most importantly, anyone who later “takes the place:” of one of the parties is not bound. That’s usually a problem. The solution? It is a “successors-and-assigns clause.”

Imagine the following: You rent an office from the owner of an office building. You paint, put down carpet, install lighting, buy custom-fit furniture, have stationery printed with your new address on it, and move in. The next month someone new buys the building. The new owner stops by and says, “Nice to meet you. Your rent has been tripled.” You say, “But I have a signed lease.” He says, “Not with me, you don’t.” That’s what a “successors-and-assigns” clause is meant to prevent.

A standard “successors-and-assigns” clause reads like this: “This Agreement is binding upon, and will inure to the benefit of, the parties to this agreement, and their respective successors and/or assigns.” (A slightly more comprehensive variation would be this: “This Agreement is binding upon, and shall inure to the benefit of the parties themselves, as well as their respective representatives, successors, permitted assigns, heirs and estates.”)

In employment agreements, and all employment-related agreements that give you something (including stock option agreements, commission agreements, and deferred compensation agreements) it is essential that you have a “successors-and-assigns” clause. (On the other hand, any agreements that “take” something from you – such as a non-compete agreement, that takes your freedom from you – is better for you if it fails to have such a clause.)

Any employer could be merged or acquired out of existence. Any employer could decide to sell its assets, divvy up the sale proceeds, and then simply go out of legal existence. Any employer could find other ways, too, to deny you what you have been promised, and have earned. The key to preventing this is simple: make sure you have a “successors-and-assigns clause” in your agreement. Otherwise, all you’ve worked so hard for could be lost, without a chance of getting it back.

WHAT YOU CAN DO: This is how you can protect yourself:

1. In Every Agreement, Always Look for the “Successors-and-Assigns” Clause: No matter what type of agreement you are looking at, always look for the “successor-and-assigns” clause. As a matter of customary contract drafting, if it’s there you will usually find it among the last four or five sections in an agreement. It might be labeled “Parties Bound,” “Binding Upon” or “Successors and Assigns,” or any number of other titles. It might also be “buried” among other provisions, with a totally unrelated title. (That’s why we read every word.) Such a clause should be present in every employment agreement, stock option agreement, restricted stock agreement, commission agreement, indemnity agreement, retention agreement, and everything “in between.”

2. If It’s Not There, Always Ask for It: There is nothing improper, impolite or aggressive in asking that a “successors-and-assigns” clause be added to your agreement. It’s “standard” language in business agreements, and employment agreements are a type of business agreement. It could be said that the absence of a “successors-and-assigns” clause in an employment agreement (or one related to employment), in and of itself, has profound consequences, because it suggests the parties did not intend that the successor employer should provide to the employee what the original employer did not. Think about it: if you work for a small accounting firm, and you are promised a bonus of $10,000 if you stay for two years; if your accounting firm is merged with a larger one, and you stay the two years, what was intended: that you’d get paid the bonus, or that you would not? The absence of a “successors-and-assigns” clause says, simply, “It was intended you would not.” If you ask for a “successors-and-assigns” clause, and are turned down, you can safely assume there is a reason for that denial, and that the reason is not a good one for you.

3. The Two Exceptions: When It’s Truly Not Intended, and When It Makes No Sense: There are two circumstances in which we do not expect a “successors-and-assigns” clause. First, in some circumstances it is not intended that a “successor” or “assignee” be obligated to the “other side.” For example, if you were promised a bonus that was to be paid to you only if the company was not sold; then in the event of a sale, it was not intended you would receive a bonus. In that case, the successor paying you a bonus was not intended. Second, for the employee, it would not make sense to ask for a “successors-and-assigns” clause in a non-compete agreement, because then it is not in his or her interests; in that case, asking for one to be put in makes no sense. If the employer did not have the sense to insert it, don’t wave flags.

4. Watch Out for the “Old One-Way Trick”: Occasionally we see what we view to be dishonest lawyering by attempted trickery, most commonly by those in large law firms who have been told and taught they are “the cleverest.” This is what we call the “Old One-Way Trick”: “The obligations and interests of the parties under this agreement shall inure to the benefit of the employer, and its representatives, successors and assigns, and be binding upon the employee, his/her representatives, successors and assigns.” Read the words carefully: notice that the way it is worded, (a) the employer (and its successors and assigns) enjoys the benefits of the agreement, but not its burdens, and (b) the employee (and his/her successors and assigns) suffers the agreements burdens, but fail to enjoy its benefits. The first time I saw this I was upset; the tenth time, I was surprised; now I simply send an email to the senior partner of the opposing firm reminding him that this is not how law used to be practiced.

5. It’s Especially Important When Working for a Smaller “LLC” and “INC.”: As in our case history above, it is most important to have a “successors-and-assigns” clause when working for a smaller limited liability company or corporation. Why? Because they are more likely to be purchased, merged or dissolved. In each instance, you want the party who takes over or receives the remaining assets to be liable to you. In companies owned by the grandchildren of the founder, it is essential, as they are notorious for not getting along with each other, “running down” the company, and wanting to “cash out” the company.

6. Your Employer Being Sold or Merged? Send an Email Reminder: Surprises in business are usually not fun. If the company that acquired your employer is not aware that you are owed a $50,000 retention bonus, or eighty-two accrued vacation days, you might engender ill will when you ask for payment. Instead, send an email to General Counsel of your own employer, not the other side, and write “It is my expectation that the new acquirer is aware of my rights and interests, which are binding on successors and assigns. If not, please ensure that they are.” That will place your company’s primary attorney in a place where he or she will either (a) let the acquirer know, or (b) likely be later accused of fraud. Let him or her do your duty.

7. Sound Like a “Hassle?” Remember You Are Doing This for Your Loved Ones, and Heirs: Sure, looking for, and asking for, a “successors-and-assigns” clause in your employment-related agreements may sound like a hassle, and today is not the day you needed more hassles in your life. However, the absence of such a clause may deny what you’ve earned today to you and your family another day. And don’t forget: in the event of your passing, your heirs are your successors, will be without you being there for them, and so will have a greater need for what you’ve earned.

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you be aware, alert and assertive regarding words, phrases, clauses and sentences that appear – or do not appear – in your employment-related agreements. Without a “successor-and-assigns” clause, all you’ve earned could end up lost.

Always be proactive. Always be creative. Always be persistent. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.

A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.

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Practical Law

General Contract Clauses: Successors and Assigns

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General Contract and Boilerplate
Canada (Common Law)

General Contract Clauses: Successors and Assigns (CA) | Practical Law

General Contract Clauses: Successors and Assigns (CA)

Practical law standard clauses w-002-4371 (approx. 8 pages).

Assignability

Assignability clause samples

10.3 Assignability .This Agreement may not be assigned by either Party, without the written consent of the other Party, such consent not to be unreasonably withheld.

02/13/2020 (Baudax Bio, Inc.)

SUCCESSION AND ASSIGNABILITY . This Note shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The Holder may not assign any of his or its rights, interests, or obligations hereunder on his or its own discretion without further approval from the Company.

06/06/2016 (Wrapmail, Inc.)

Section8.13 Non- Assignability . This Agreement and the rights and obligations of the parties under this Agreement may not be assigned or delegated by either party without the prior written consent of the other party, and any purported assignment without such consent shall be void.

02/02/2018 (2017 MANDATORY EXCHANGEABLE TRUST)

4. Non- Assignability . The Restricted Stock Unit shall not be transferable by the Grantee, except as the Plan or this Agreement may otherwise provide.

03/19/2021 (CuriosityStream Inc.)

Assignability . This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to be the benefit of the Holder and its successors and assigns.

03/15/2021 (MMEX Resources Corp)

17. Assignability . During Employee’s employment, this Agreement may not be assigned by either party without the written consent of the other. However, Employer may assign its rights and obligations under this Agreement without Employee’s consent to a successor by sale, merger or liquidation, if such successor carries on the Business substantially in the form in which it is being conducted at the time of the sale, merger or liquidation. This Agreement is binding upon Employee, Employee’s heirs, personal representatives and permitted assigns and on Employer, its successors and assigns.

03/11/2019 (Trillium Therapeutics Inc.)

10.7. Assignability . This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of a Party’s rights or obligations hereunder may be assigned or delegated by such Party without the prior written consent of the other Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such Party without the other Party’s prior written consent shall be void and of no effect.

01/25/2019 (Edge Therapeutics, Inc.)

6.3 Assignability . Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns. Subject to the prior written consent of the Company, the Holder may assign or transfer this Note to any transferee or have the shares that it converts under this Note sent to any third party. If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note registered as the Holder may request and the Company may accept, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Nate, acknowledge and agree that, following conversion or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note.

05/26/2016 (NewLead Holdings Ltd.)

5. Assignability . This Amendment shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and assigns.

12/14/2018 (APRICUS BIOSCIENCES, INC.)

C. Assignability . Neither party to this Agreement may assign all or any part of the party’s rights and obligations under the terms of this Agreement without the prior written consent of the other party. No assignment that is approved by the other party is to relieve the assignor of the assignor’s obligations under the terms of this Agreement if the assignee fails to perform those obligations.

12/12/2017 (Luther Burbank Corp)

6.4 Non- Assignability . This Agreement and the rights and obligations hereunder, shall be fully assignable by the Manager to an affiliate thereof. This Agreement and the rights and obligations hereunder shall not be assignable by any other party hereto without the written consent of all of the other parties hereto. Provided, however, that the foregoing shall not extend to assignments required by any insurance carrier in any matter relating to subrogation and shall not extend to an assignment by any Insured Entity in connection with a sale or financing of a Project or a portion thereof.

05/04/2018 (Spirit MTA REIT)

6. Assignability . This Amendment shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of the Common Shares or the Warrants.

07/03/2019 (HISTOGENICS CORP)

11. ASSIGNABILITY . This Agreement is not transferable or assignable by the undersigned except as may be provided herein.

09/02/2016 (GEX MANAGEMENT, INC.)

3.4. Assignability . This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns, and may not be assigned by the Holder without the prior written consent of the Borrower, which consent may not be unreasonably withheld.

09/02/2016 (Full Spectrum Inc.)

7. Assignability . Assignee shall not assign the Contract or this Assignment or any of its rights, interests, or obligations thereunder or hereunder without the prior written approval of Assignor. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee.

03/15/2021 (Aspirational Consumer Lifestyle Corp.)

2. Non- Assignability . This Agreement shall not be assignable without the prior written consent of the non-assigning party.

08/10/2016 (Affinity Gaming)

a. Captions and Headings. The Article and Section headings throughout this Agreement are for convenience of reference only and shall in no way be deemed to define, limit or add to any provision of this Agreement. b. Notification of Changes. Subscriber agrees and covenants to notify the Company immediately upon the occurrence of any event prior to the consummation of this Offering that would cause any representation, warranty, covenant or other statement contained in this Agreement to be false or incorrect or of any change in any statement made herein occurring prior to the consummation of this Offering. c. Assignability . This Agreement is not assignable by Subscriber, and may not be modified, waived or terminated except by an instrument in writing signed by the party against whom enforcement of such modification, waiver or termination is sought. d. Binding Effect. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns, and the agreements, representations, warranties and acknowledgments contained herein shall be deemed to be made by and be binding upon such heirs, executors, administrators, successors, legal representatives and assigns. e. Obligations Irrevocable. The obligations of Subscriber shall be irrevocable, except with the consent of the Company, until the consummation or termination of the Offering. f. Entire Agreement; Amendment. This Agreement states the entire agreement and understanding of the parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written. No amendment of the Agreement shall be made without the express written consent of the parties. g. Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect any other provision hereof, which shall be construed in all respects as if such invalid or unenforceable provision were omitted.

01/12/2021 (Masterworks Collection 001, LLC)

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Some Important Information About Contracts and “Boilerplates”

Have you ever read towards the end of a contract where there seems like a lot of stuff that doesn’t have to do with what the contract is all about, but that the lawyers think should be there? Sometimes people call it “boilerplate.” Some people might think it is useless or standard wording. Really, although the general topics covered by such “boilerplate” are usually about the same, the specific wording and variations can make a huge difference—meaning, you should be careful that it fits your transaction.

In this blog I will talk about two such provisions, commonly labeled, first, “Entire Agreement” or “Integration Clause,” and second, “Parties In Interest” or “Successor and Assigns.”

Entire Agreement/Integration Clause

The purpose of this clause is to make the rule for what happens if later on in the future the parties dispute whether there is some important part of the deal not contained in the written contract. More precisely, the entire agreement/integration clause comes into play (if the contract has one) when the parties are in court arguing about the terms of the deal (or are arguing before a lawsuit about who they think will win if there is a lawsuit). In these disputes one side usually is happier with what the contract literally says, while the other is not so happy—either because they didn’t read and negotiate the draft contract carefully before they signed, or because they never imagined the set of circumstances that now give rise to the dispute. The consequences are whether the judge or jury will decide the case after only reading the contract, itself, or whether the judge or jury will also hear testimony about what the parties intended to be part of the deal even if it is not in the written contract.

As an aside (and this is a point that even some lawyers don’t seem to understand), if the contract contains a key word of provision that is just simply ambiguous, then the judge will always permit the parties to testify about what that term was supposed to mean. That’s because the goal of the law is to enforce the contract, but if upon reading the contract you just can’t tell what the damn thing means, you need to get testimony from the parties about what they were trying to say. And, of course, they might have totally different stories about what they intended, and the judge or jury will have to decide whose version is more credible. And this will happen regardless of whether there is an entire agreement/integration clause in the contract or not.

The integration clause really comes into play when one side says that there were discussions and understandings that didn’t find their way into the written contract, but were still part of the deal. A typical integration clause says something like “this contract expresses the entire understanding of the parties with respect to the transactions described herein.” So if the contract contains such a clause, and one side later on says there was another aspect of the deal that was agreed upon but not contained in the contract (e.g., that if delivery was late the buyer would get a discount of 10% for each week of delay), the other side will point to the integration clause and argue it forbids any testimony that any such further agreement ever existed—i.e., the other side will point out that the “entire agreement” clause point blank says the contract expresses the entire understanding of the parties as to the subject of the contract, so there can’t be any other important terms not found in the written contract.

At this point the law becomes highly technical and looks at the wording of the “entire agreement” clause, and considers that together with the entire look and feel of the contract, to decide if the contract is “fully integrated” or just “integrated.” If it is integrated, but not fully integrated, testimony about additional consistent terms is permitted—so if a 10% discount is not inconsistent with what is otherwise stated in the contract, the buyer would be able to try to convince the court or jury that the parties did agree to that discount for late delivery. The seller might say that’s baloney, and no such agreement was made. But at least the buyer would have a chance to convince the court or jury otherwise.

On the other hand, regardless of whether the contract is “fully integrated” or merely “integrated,” testimony that there was an understanding inconsistent with what the contract actually says is not permitted. So if the contract with a simple integration clause says “there shall be no discount for delays in delivery unless delivery is delayed by more than three weeks,” the buyer would not even be permitted to try to convince the court or jury that that the seller had actually agreed to a 10% discount for each week delivery was delayed starting from week one.

If the integration clause goes on to say (as some do) that neither party is relying on any sort of other understanding, oral or written, besides what is expressly contained in the contract, and says (as some do) that neither side will ever claim there ever was such an understanding, then the contract is almost certainly “fully integrated.”

So why aren’t all contracts “fully integrated”? I mean, why not make as sure as humanly possible that neither side will ever be able to try to convince a court or jury there was more to the deal than stated in the contract?

The answer is in most cases it is impossible to predict ahead of time which side will be benefitted most by a full integration clause. Deals come in all shapes and sizes with all sorts of different sorts of parties, young, old, rich, poor, sophisticated, stupid, and so forth. Sometimes it will seem like one side or the other is more likely to be benefitted by a full or strong integration clause—but then, damn, it turns out that one of the managers of that party did get the other side to agree orally to this or that consistent additional term, but just didn’t tell the lawyers so it didn’t make it into the 25-page contract. So, in practice, except in some contexts, the parties are often just content with a simple “boilerplate” integration clause that at least forbids any side saying later on that the real deal was something inconsistent with what the contract says.

Successors and Assigns/Parties In Interest

What happens if the individual you contract with dies before the contract is performed? Or what happens if the company you have a contract with sells all of its assets, including the contract, to another company before the contract is performed? Or what happens if you contract with a corporation because you trust its current owners, but along the way those owners change. The answer is, it depends, and it can depend on what the “successors and assigns” clause actually says, and sometimes one side or the other will have a real stake in the answer.

A typical (short) successors and assigns clause says something like: “This agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties.” Usually, in my view, this is too skimpy, even for “lean” agreements. More thought needs to be put into it.

First of all, who the heck are successors and assigns, anyway?

The answer is, if one of the parties to the contract is a human being, the term “successor” is misplaced. Humans don’t have “successors.” If a party to the contract dies before the contract has been fully performed, he or she has a personal representative of the estate (called “executor” in other states) and heirs. Corporations and certain other legal entities have “successors.” A successor of a corporation, e.g., is another corporation into which that corporation merges. Individual human beings do not “merge” into other human beings, except in science fiction movies.

Both individuals and legal entities can have “assigns.” An “assign” is a third party, not a party to the contract, to whom one of the party transfers any of that party’s rights or obligations under the contract. Sometimes contracts prohibit assignment without the consent of the other party. Sometimes contracts prohibit assignment of obligations but not rights. Sometimes the other way around. Sometimes drafters are not careful to distinguish between the assignment of rights or obligations.

Sometimes, also, the subject matter of the contract makes it clear what happens if one party dies. But often that is not the case, and the parties will want to think about that. Will the estate of the deceased (and heirs) of the deceased party be required to assume the obligations and be permitted to benefit from rights under the contract? Or not?

Sometimes contracts are made for the benefit of third parties who are not themselves a party to the contract. If so, the “parties-in-interest” clause should say who they are and what rights they have. If they are not a party, they can’t have obligations, but they can have rights (in other words, two of my friends can’t sign a contract, not signed by me, obligating me to mow their lawns). Many times neither party wants any third party to have rights under the contract. If so, the “parties-in-interest” clause should say so, usually with a sentence similar to “There is no intended third-party beneficiary under this Agreement and the undersigned parties are the only parties-in-interest.”

My point is that there are so many different possible variations of what the parties might really want, if they think carefully about it, that there really is no “boilerplate” successors and assigns clause. And on the other hand, sometimes the economics of the situation don’t justify getting bogged down on these details that probably—with emphasis on probably —won’t matter. But if something unexpected happens, and the attorney just went with “boilerplate,” his or her client might not like the outcome. And if the attorney peppers the client beforehand with “what if’s,” and the fee for writing the contract escalates, or complicates or tanks negotiations with the other party, his or her client might not like that, either. That is why the practiced of law is just that, a practice, not a science.

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