Copyright (c) 2003 North Carolina Law Review
North Carolina Law Review
ARTICLE: THE REGULATION OF CONTRACTUAL CHANGE: A GUIDE TO NO ORAL MODIFICATION CLAUSES FOR NORTH CAROLINA LAWYERS
81 N.C.L. Rev. 2239
Martin H. Brinkley*
I. The Mystery of NOM Clauses
Provisions that forbid oral modification or oral waiver of a written agreement - so-called "no oral modification" and "no oral waiver" clauses 1 (referred to here as "NOM" and "NOW" clauses) - are almost as commonplace as written contracts themselves. 2 In a simple contract, a combined NOM and NOW clause might read: "This Agreement cannot be amended, modified or waived except by a written instrument signed on behalf of the party to be charged," or "No purported modification of this agreement or waiver of any provision of this agreement shall be binding upon X unless such modification or waiver shall be evidenced by a writing signed by X." In a more complex document, the clause might read:
No amendment or waiver of any provision of this Agreement, the Notes or any of the other Loan Documents, nor consent to any departure by any of the Loan Parties therefrom, shall in any event be effective unless the same shall be in writing and signed by each of the Loan Parties party to such Loan Document and directly affected by such amendment, waiver or consent and signed by the Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Both the breadth and the precision of the language used in conventional NOM and NOW clauses are limited only by the ingenuity of the lawyers who draft them. But the underlying motivation ...
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