Of Fine Lines, Blunt Instruments, and Half-Truths: Business Acquisition Agreements and the Right to Lie
Jeffrey M. Lipshaw
In this article, I expand upon a happy coincidence (for scholars) in reconciling the overlap between contract and fraud. Both the recent book by Ian Ayres and Gregory Klass and the opinion by the Delaware Court of Chancery in Abry Partners Acquisition V, L.P. v. F & W Acquisition, LLC’ addressed the matter of lies within contractual promises, whether as to the promisor’s intention to perform or as to the state of the business being sold. Each treatment, however, in focusing on fraudulent affirmative representations, falls short of (1) recognizing the fundamental aspect of deceptive promising in a complex deal, namely the half-truth, (2) articulating an appropriate doctrinal principle to address it, or (3) capturing the social and linguistic context that makes the deceptive half truth so insidious.
The archetypal facts in Abry frame the issue. When the parties to a business acquisition agreement purport to limit the buyer’s reliance to those representations and warranties set forth in the agreement, just what obligations of truth-telling have the parties contractually released? We need to grapple with the interrelationship of law, language, mutual understanding, and trust. The language of the law (and the contract) is a blunt instrument by which to map the subtle fine lines of a complex agreement. I contend that there is a kind of special arrogance in the illusion onto which lawyers hold-that the uncertainties and contingencies of the world are in their power to be controlled, and to the winner of the battle of words go the spoils. The correct doctrinal result is to presume in the transactional speech acts (including the contract), as we do in everyday life, a default of truth-telling. This permits the parties to contract freely around the rule, but it requires narrow construction of the exceptions and disclaimers.