Recitals

Recitals are important to musicians. Most people who have played a musical instrument have played in a recital. Many proud parents and grandparents may have sat through dozens of lengthy recitals to see a child perform for less than five minutes.

One month after my son started Suzuki violin at the age of three, I was surprised when his teacher said that he would be performing in a recital. He had barely learned to hold the violin and hadn’t yet played any notes.

Yet, he masterfully performed a bow–not the type of bow that one pulls across the strings on a violin. No, my son proudly walked to the front of the room, turned to face the audience, and bent over and bowed to thunderous applause.

In contrast is my senior recital in music school. I performed Baroque and Romantic sonatas[1] and a Twentieth Century concerto. I ended the recital with a show piece by Spanish violinist Sarasate[2], a total of at least 70 minutes of music.

Regardless of the length or complexity of the music, recitals serve important purposes for musicians. Recitals provide a concrete goal and deadline to work toward. Recitals help young musicians learn stage presence and confidence and how to deal with stage fright. And, many times, Recitals will mark a milestone, such as the completion graduation to a new level.  Recitals may help musicians to put their accomplishments in perspective.

Contracts also have recitals. Although contracts don’t perform music, their recitals are up front and center, toward the beginning of the contract. Like music recitals, contract recitals sometimes are short and other times may be lengthy. Just as a recital may include only one performer or many, contract recitals may consist of only a single clause or many clauses.

Yet, many people never even read the recitals in their contract. They see them as boilerplate, something that is in every contract, but which isn’t very important and need not be negotiated.

The reality is that like music recitals, contract recitals are important. They “set the stage” for the contract and help the reader to understand the purposes of the contract.

This article on contract recitals is one in a series about boilerplate provisions in contracts.

Where are the Recitals in a Contract?

Recitals are at the beginning of a contract, right after the introductory paragraph. Depending upon the style chosen by the contract attorney, the recitals may start with a header “Witnesseth” or perhaps “Recitals.” Witnesseth is an old English word that now means “take notice.” Sometimes, there is no header to the recitals.

Recital paragraphs traditionally each start with “Whereas.” However, sometimes attorneys number the paragraphs instead.

What is the Purpose of Contract Recitals?

Contract recitals state the purpose of the contract and sometimes provide background information or help for the reader to put the contract in context.

Purpose-related recitals in a real estate purchase contract might read as follows:

WHEREAS, Seller owns certain real estate more fully described in Exhibit A attached hereto (Real Estate) and desires to sell the Real Estate assets to Buyer at the price and on the terms and subject to the conditions set forth below; and

WHEREAS, Buyer desires to buy the Real Estate from Seller at the price and on the terms and subject to the conditions set forth below;

These recitals only describe the purpose of the contract. It is a contract for the sale and purchase of real estate.

Recitals sometimes will provide background information about the parties or the transaction. Suppose, for instance, the Buyer were acquiring the property to redevelop it with a different zoning classification. The following additional recitals might be added to give additional information about the buyer’s goals and motivation and to describe a critical transaction requirement associated with zoning:

WHEREAS, after acquisition, Buyer intends to redevelop the Real Estate into a shopping center; and

WHEREAS, Seller is willing, prior to closing on the sale of the Real Estate to Buyer, to allow the Real Estate to be rezoned for commercial use;

Recitals also can help the reader to understand the context in which the parties are entering into a contract. Or recitals may direct the reader to other documents or another transaction that is important to an understanding of the contract. For example:

WHERAS, simultaneous with the execution of this contract, Buyer is entering into a contract with Seller’s affiliate, Seller Affiliate, LLC, for the purchase and sale of real estate adjacent to the Real Estate, the closing on which is to occur simultaneously with the closing on the Real Estate hereunder.

Recitals also can provide the history of the transaction. For instance:

WHEREAS, on or about January 1, 2000, Seller, as lessor, and Buyer, as lessee, entered into a lease (Lease) for the Real Estate, which contained an option for the Buyer to purchase the Real Estate on certain terms and conditions; and

WHEREAS, Buyer has exercised its rights under the Lease to purchase the Real Estate by providing notice to Seller in accordance with the Lease; and

WHEREAS, the parties desire to formalize the terms and conditions of the Buyer’s purchase of the Real Estate from Seller.

These recitals show the history of the relationship between Buyer and Seller with respect to the real estate. They also make the reader aware that the Lease may contain terms that are relevant to the contract.

How Can Contract Recitals Impact a Transaction?

Unless the contract provides otherwise, recitals are not part of the contract terms agreed to by the parties. When the parties want the recitals to be part of the contract, they may include language that states that the recitals are “incorporated by reference” into the contract. If a contract contains this language, the recitals are part of the contract.

Some contracting parties try to make the recitals binding by later in the contract having the parties represent that the recitals are “true and correct.” Unwitting parties who agree to this can turn recitals into representations. If this happens, the inaccuracy of the recitals could be a breach of the contract itself. If the parties desire to make a representation regarding the history or context of the contract, it is better placed in the “representations and warranties” section of the contract.

Even when the recitals are not part of the contract, they can serve important legal purposes in a contract. Recitals also can help with contract interpretation.

For instance, written contracts are subject to something called the “parol evidence rule.” This rule says that parties to a contract cannot use oral discussions before a written contract to contradict what is in the contract.

By putting recitals in the contract to put the contract in context or tell its history, parties can provide clues to help with the interpretation of a contract without the use of oral evidence. Recitals might even create ambiguity in the contract. Ambiguity in contract language is a typical exception to the parol evidence rule that allows oral evidence to be considered.

Take Recitals Seriously

Musicians who do not seriously prepare for a recital do so to their detriment. When faced with the additional pressure of standing on a stage in front of an audience, their lack of preparedness can lead to errors and embarrassment.

Likewise, contracting parties should read recitals and assure that they are accurate. Contracting parties also should work with their attorneys to be sure that the recitals meet their needs. And, every party should be sure that it is not making representations regarding the accuracy of recitals unless that is in the party’s best interest.

With careful preparation, however, contract recitals can be as beneficial for contracting parties as music recitals are for musicians.

© 2018 by Elizabeth A. Whitman

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information contained in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless and until a written contract is signed by all parties and any conditions in such contract are fully satisfied.

[1] A sonata is a three- or four-movement musical composition for instruments. In the Baroque period, sonatas frequently were written for multiple instruments and had three movements–a fast movement, a slow movement, and a very fast movement. However, in later musical periods, sonatas typically are for a solo instrument, sometimes with a keyboard, and sometimes had four movements. Four-movement sonatas often add a dance or a scherzo (joke) movement after the slow movement.

[2] Pablo de Sarasate was a 19th century Spanish violinist and composer. He wrote many violin solo pieces, most of which are considered “show pieces,” because they require challenging violin technique. Many of his pieces draw upon Sarasate’s Spanish heritage, and some of his most famous pieces were Spanish dances. The composition I played at my senior recital, Zigeunerweisen, has a gypsy style.