Most people know that string instruments make a sound when the bow hair is pulled across the string. The type, quality, length, and condition of the bow hair impact the sound produced. Yet, rarely does anyone other than a string player pay any attention to the bow hair itself.
Nearly all bows use horse hair. There are a few synthetic products, but they aren’t suitable for any but the youngest of beginners.
Bow hair comes in many colors, thicknesses, and coarseness. White hair is used on violin, viola, and cello bows, but never string bass bows. Bass bows (and occasionally cello bows) are haired with black, sorrel, or other, darker colors of hair whose thickness and coarseness works better under the pressure required to play a larger instrument.
When so many bow hairs have broken off that the hair is thin, it is time for a rehair. Bow hair also is sensitive to changing seasons; the long hair which worked well in the dry winter season may be too long during a humid summer, requiring a rehair with each season.
Bow hair can become dirty from the oil from a player’s thumb (which for a violinist or violist should touch the hair at the bottom if the bow is held properly). Other times, the rosin applied to the hair to make it grip the strings better becomes sticky. Since bow hair isn’t amenable to cleaning, dirty or sticky bow hair needs to be replaced.
Bow hair also can stop gripping the string no matter how much rosin is applied. This tells the play that tiny scales on the hair, itself, have broken off so the bow can no longer hold rosin or grip the string.
Both audiences and inexperienced string players may pay no attention to bow hair. But bow hair is important and requires regular attention if the instrument is to produce a beautiful sound.
Likewise, there are many contract clauses which parties ignore because they think the clauses are unimportant boilerplate. This “boilerplate,” like bow hair, can be critical to the contract meeting the parties’ needs and preventing unpleasant surprises.
This article is one in a series about boilerplate clauses and why they are important. This article discusses amendment provisions in contracts.
What is a Contract Amendment and Why Have an Amendments Clause?
A contract amendment is a change in a contract after it has been signed. Amending a contract is similar to taking a bow in for rehairing. When a bow is rehaired, the substance of the bow remains unchanged, but the hair is changed. A contract amendment retains the substance of the contract but changes one or more provisions.
It’s easy to understand that a contract might sometimes need to be changed after it is signed. What isn’t as obvious is why the original contract should include a clause discussing how it might be amended. When the contract is first signed, no one knows whether there ever will be a reason to amend it.
By putting an amendments clause in a contract and agreeing in advance what formalities are required to amend the contract, the parties can avoid future misunderstandings and disagreements.
An amendments clause can be only one sentence. Each of the following examples describes a different amendment process, which is indicated in the parentheses.
This Agreement shall not be modified or amended except by an instrument or writing signed by and on behalf of the parties. (written document signed by all parties)
The Agreement may be modified or amended only by a writing signed by the party to be charged. (written document signed by the party against whom the amendment is being enforced)
This Agreement may be amended only by explicit agreement of both of the parties hereto. (oral or written agreement of all parties)
Both parties must consent to any amendment of this Agreement. (oral or written agreement of both parties, and perhaps by the actions of both parties)
What Should an Amendments Clauses Contain?
The two fundamental requirements in an amendments clause are: 1) how the contract can be amended and 2) who can amend the contract.
How the Contract can be Amended
Contracts can be amended in three ways: in writing, orally, or by the parties’ actions. To prevent misunderstandings, it is best to require that contract amendments be written. Examples 1 and 2 require written amendments.
Contracts also can be amended by oral agreement. This might occur if, for instance, one party calls the other and asks for an additional day to meet a contract deadline. The second party agrees verbally to the one-day extension. If the agreement permits oral amendments, that would be a valid contract amendment.
If the parties do not want oral amendments to be valid, they should clarify that oral amendments are not allowed. Examples 1 and 2 make it clear that only written amendments are permitted. Examples 3 and 4 both allow oral amendments, because those examples do not state that oral amendments are permissible.
Another way contracts can, from a practical matter, be amended is by the actions of the parties. This might be called a “course of performance,” meaning that the parties implicitly amend the contract based upon how they perform the contract. Example 4 above may allow the parties to amend the contract by their actions because it does not exclude those implicit amendments.
Finally, parties should remember that the amendment, itself, can impose stricter requirements for amendment than the contract. For instance, if the contract included the Example 2 amendment language, the amendment could state it will not be effective until it is signed by both parties.
Who Can Amend the Contract
Parties also should consider who can amend the contract. Examples 1, 3, and 4 require that both parties agree (whether in writing or orally or by their actions) to an amendment. However, Example 2 requires only a writing “signed by the party to be charged.”
The party to be charged is legalese for “against whom the amendment is being enforced.” For instance, an amendment by one party can occur if only one party signs an amendment. In that instance, the other party might be able to enforce that amendment against the party who has signed it, even if the amendment cannot be enforced against the party seeking to enforce it.
This possibility of unilateral enforceability might make parties not want to be the first to sign an amendment. But there is a way to eliminate this concern. The amendment can state it won’t be effective until it is signed by all parties.
Planning Ahead for Amendments
Bow hair works best when it is fairly new but has been rosined and played on for a few days. Therefore, violinists may schedule a bow rehair a week before a performance so they are performing under optimal conditions.
Violinists also will plan their rehairs in advanced so the bow hair is never in horrible condition should an unexpected performance opportunity arise. By planning ahead and including clear amendments language in their contract, parties can be assured that they are ready if an unexpected situation requires a contract amendment.
This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.