People who agree with each other in a written contract (parties) sometimes change their minds after the contract is prepared and signed.
If a contract was prepared by an attorney, it is advisable that an attorney undertake any amendment or other modifications of that attorney-prepared contract. Nevertheless, if a written contract is amended by a non-attorney, there are three primary methods of facilitating that amendment.
First, the most precise method of contract amendment is to identify language in the contract that is to be “stricken/removed/deleted” and then identify language in the contract that is to be “added/included/inserted” in its place. This type of amendment is often called a strike-and-insert amendment.
For example, a strike-and-insert amendment might state, “The word ‘35’ in paragraph B of the contract is removed, and the word ‘37’ is inserted in its place.”
The biggest downside of this very precise strike-and-remove amendment method is that it can make the agreement as amended, quite hard to read. Therefore, people will often supplement a strike-and-insert amendment with a redlined version of the initial agreement showing within the text of the document which language is being stricken (by a computerized line printed through it) and what is being inserted (by a unique color or type of font).
Sometimes, if the contract provisions sought to be amended are numerous, it can be easier to amend the entire contract through a “fully amended and restated” contract. These fully amended and restated contracts are most effective when the words “fully amended and restated” accompanied by the date of the amendment are included in the contract’s name (on the header on the first page and as a header or footer on proceeding pages of the amended contract).
When other contracts or agreements dovetail with a fully amended and restated contract, the contract’s amendment can cause other problems. For instance, I may have a contract for oil changes for my truck, which oil change dates in the contract might be defined as occurring “at the interval called-for in paragraph 11 of the dealer handbook.”
Of course, if the dealer handbook is fully amended and restated, the information originally in paragraph 11 of the dealer handbook may be found elsewhere (or nowhere) in the dealer handbook. Overcoming this challenge is not dissimilar to the hard work faced by our legislators when they amend a state or federal law, because almost every state or federal law refers to, incorporates or distinguishes another state or federal law.
Finally, people sometimes just write out amendments that are usually considered to be explanations or additions to an existing contract. This is the least precise method of contract amendment because such an amendment can affect more or less of the contract than intended.
Otherwise stated, these amendments usually do not clarify whether the changes are in addition to the language already in the contract or whether the changes replace language already in the contract. For this reason and many others, these amendments can create more problems than they may address/improve.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.