What It Does
Representations and warranties are where the deal’s facts get put in writing and made actionable. They are the first thing diligence tests and the first thing a dispute reopens. For in-house counsel, they are the backbone of risk allocation and the hook that connects a false statement to a remedy. The operative questions are which facts each side stands behind, how heavily those reps are qualified by knowledge and materiality, whether they survive past closing, and whether a breach feeds the indemnity. A practical test: read the reps with the disclosure schedules next to them, because a broad exception on a schedule can hollow out a rep that looks airtight in the body.
When You'll See It
Representations and warranties appear in nearly every substantive contract: M&A purchase agreements, financing and credit agreements, SaaS and license agreements, supply contracts, and employment and equity documents. In commercial deals they run a few mutual reps on authority and enforceability; in M&A they expand into pages of seller reps backed by disclosure schedules. They are most heavily negotiated in M&A, where the seller’s reps and their survival period drive the indemnity.
It matters most where one side is buying something it cannot fully verify, such as a business, a portfolio, or a software platform. The less you can confirm in diligence, the more weight the reps carry.
Examples
Regeneron Pharmaceuticals, Inc.
Sanofi, Fifth Amendment to License and Collaboration Agreement
Mutual + organization and authority
Mutual
2022
"Each party represents and warrants to the other Party, as of the Effective Date, as follows: (a) it is duly organized and validly existing under the Laws of its jurisdiction of incorporation; (b) it has full corporate power and authority and has taken all corporate action necessary to enter into this Fifth Amendment[…]"
Source
Fate Therapeutics, Inc.
Ono Pharmaceutical Co., Ltd., Amendment
Mutual + enforceability
Mutual
2022
"Each Party represents and warrants to the other Party as of the execution of this Amendment, that (i) such Party has taken all necessary action on its part required to authorize the execution and delivery of this Amendment and the performance of its obligations hereunder, and this Amendment constitutes a legal, valid and binding obligation of such Party that is enforceable against it in accordance with the terms[…]"
Source
SmartRent, Inc.
Kristen Lee, First Amendment to Employment Agreement
Mutual + authority to sign
Mutual
2024
"Each party represents and warrants to the other party that (i) it has the authority to enter into this Amendment and to grant the rights contained herein, and (ii) the person signing this Amendment is authorized to sign on behalf of that party."
Source
US Farms & Mining, Inc.
CSRE Properties Tennessee, LLC (CleanSpark), Real Estate Purchase and Sale Agreement
One-sided (Seller) + materiality bring-down
One-Sided
2024
"Accuracy of Seller’s Representations and Warranties. All of Seller’s representations and warranties contained in or made pursuant to this Agreement shall be true and correct in all material respects as of the Closing Date."
Source
Advanced Micro Devices, Inc.
Underwriters, Underwriting Agreement (Senior Notes)
Knowledge-qualified + IP and no-litigation
2025
"[…] (i) to the knowledge of the Company, there is no material infringement by third parties of any such Intellectual Property; (ii) to the knowledge of the Company, there is no pending or threatened action, suit, proceeding or claim by others challenging the rights of the Company or any of its subsidiaries in or to any such Intellectual Property[…]"
Source
Point Energy Partners Petroleum, LLC
Vital Energy, Inc., Purchase and Sale Agreement
No-other-representations disclaimer
2024
"[…] as to the accuracy as of the Closing Date of the representations and warranties of Seller set forth in this Article 4, (i) Seller makes no other representations or warranties, express or implied, and (ii) Seller expressly disclaims all liability and responsibility for any representation, warranty, statement[…]"
Source
Negotiate
Buyer or customer
Get broad, unqualified reps on the facts that matter most, such as title, IP ownership, and compliance.
Resist sweeping knowledge and materiality qualifiers that hollow out the reps.
Require a bring-down of the reps to the closing date as a condition to close.
Tie a rep breach directly to indemnification with a workable survival period.
Add a full-disclosure or no-misstatement rep where the facts warrant it.
Seller or vendor
Qualify reps by knowledge and materiality wherever defensible.
Use the disclosure schedules to carve out known exceptions.
Shorten the survival period so stale reps cannot be claimed years later.
Add a no-other-representations disclaimer to block reliance on anything outside the contract.
Cap rep-and-warranty indemnity with a basket and a ceiling.
Every qualifier is a risk shift. Track where the facts move from one side to the other.
Red Flags
Sweeping knowledge and materiality qualifiers that turn firm facts into near-meaningless statements.
Reps with no survival period or an extremely short one, leaving no time to discover a breach.
A no-other-representations disclaimer paired with thin contractual reps, which narrows your recourse.
Reps decoupled from indemnification, so a false statement carries no clear remedy.
Disclosure schedules that swallow the reps with broad, vague exceptions.
FAQs
Related Clauses
Indemnification
A contractual provision in which one party agrees to cover specified losses or third-party claims that the other party incurs.
Material Adverse Change
A provision that lets a party walk away or refuse to close if a serious, unexpected event damages the other party's business or its ability to complete the deal.
Limitation of Liability
A contractual provision that caps the amount and types of damages one party can recover from the other.
Warranty and Disclaimer
A provision that states what a party affirmatively warrants about its goods or services and disclaims every other warranty, including the implied warranties of merchantability and fitness.
Entire Agreement
A boilerplate provision stating the written contract is the parties' complete and final agreement, replacing every prior promise or side conversation on the same subject.
This content is for informational purposes only and does not constitute legal advice.