In Infiniteland, it was a guarantee that the accounts did not show a “true and fair” view of the profit and loss of the target. In this case, the sales contract contained a knowledge-efficient provision that the right to a breach of the warranty would not be affected by any of the target`s due diligence investigations conducted by the purchaser, unless such investigations did in fact allow the purchaser to know the relevant facts or circumstances that led to the infringement. In this case, the seller provided materials that, if verified by the purchaser as part of the usual duty of care, would have revealed the inconsistency of the conclusion with the warranty (and would have effectively disclosed to the buyer`s accountants). The buyer stated that he was not aware of the problem and that the buyer`s accountants had not informed them of the problem they had discovered. The court found that the actual knowledge of the buyer would randomly lead to a breach of the guarantee, but constructive knowledge would not prevent the buyer from relying on the knowledge-saving clause contained in the agreement; However, the question of whether actual knowledge (i.e. the knowledge of the buyer`s representatives) is knowledge that has been made more difficult was more difficult. In this case, the Tribunal found that the knowledge of the buyer`s representatives would not be considered to be that of the purchaser, unless the contract provided for it. In particular, a seller might attempt to integrate the knowledge of agents and consultants into determining the knowledge economy in light of this case, but the facts themselves in this case show how important it is for a buyer to object to such a provision. Finally, other states than New York have different positions, as has already been mentioned.
For example, in Hendricks v. Callahan, 972 F.2d 190 (8th Cir. 1992), the U.S. Court of Appeals for the Eighth Circuit (allegedly enforcing Minnesota law) stated that “to allow a party that disposes of a violation of the express or implied guarantee, it must be clear and clear that there is indeed confidence in the guarantees in question.” In other words, if the applicant had been aware of the false guarantee, he could not have relied on it and therefore would not have been able to claim contractual prejudice because the guarantee was false. On the contrary, in Southern Broadcast Group, LLC v. GEM Broadcasting, Inc., 145 F. Supp. 2d 1316 (M.D. Fla.), the Federal District Court, which applied the Florida law, stated that “the Florida Supreme Court would adopt the modern opinion that explicit safeguards would be negotiated – for the terms of a contractual agreement whose violation merited violation, regardless of the evidence of non-omission at the time of closure.” In this case, it is specified that the question of whether a statement is a representation, a guarantee or both is a matter of contractual interpretation of the text and context of the contract in question. Given the diversity of remedies in the event of a breach of representation or guarantee, it is important that the parties carefully consider their intentions.
If the parties intend to implement explicit guarantees in the contract as assurances, a concrete text should be clearly set out in the treaty that specifies this. If the parties wish to avoid the guarantees being construed as guarantees, it is always advisable to remove all references to insurance from the contract and to include a detailed comprehensive contractual clause to exclude claims for innocent or negligent misrepresentation. THE MAC clauses that take the form of a general condition for closure are not commonplace in Britain. Where a MAC clause is included in a sale contract in the United Kingdom, it is more likely to be adopted in the form of a right of termination that can be exercised in cases where the seller, by his act or omission, caused an event that would be substantially inconsistent with the guarantees if they were considered repeated at the close. The purchaser therefore filed a complaint for breach of the warranty (an action worth $6 million), but also stated that the violation of the