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CS Professional · Drafting, Pleadings and Appearances · General Principles of Drafting

While reviewing a draft MoU for Greenfield Ltd, a junior finds the recital says the supplier 'has agreed to supply 500 units', but the operative clause says 'up to 300 units'. Following the usual drafting and interpretation approach, what should the drafter do?

The drafter should reconcile the recital and the operative clause so they state the same quantity. Recitals give background and must not contradict the operative part, which generally governs in a conflict. Leaving an inconsistency invites disputes over interpretation.

  1. AReconcile the two so they say the same thing, since recitals should not conflict with the operative partCorrect
  2. BLeave both unchanged because recitals always override the operative part
  3. CDelete the operative clause and rely on the recital
  4. DMove the recital to the schedule without change

Explanation

Recitals describe background and should be consistent with the operative part, which normally governs where there is a conflict. The drafter should remove the inconsistency rather than leave a dispute-prone conflict or let a recital override.

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