“In my view an acknowledgment of non-reliance … is capable of operating as an evidential estoppel. It is apt to prevent the party who has given the acknowledgment from asserting in subsequent litigation against the party to whom it has been given that it is not true. That seems to me to be a proper use of an acknowledgment of this nature, which, as Mr. Justice Jacob pointed out in the Thomas Witter case [Thomas Witter Ltd. v. TBP Industries Ltd.[1996] 2 All ER 573 ], has become a common feature of professionally drawn commercial contracts.”
“There are, as it seems to me, at least two good reasons why the courts should not refuse to give effect to an acknowledgment of non-reliance in a commercial contract between experienced parties of equal bargaining power – a fortiori, where those parties have the benefit of professional advice. First, it is reasonable to assume that the parties desire commercial certainty. They want to order their affairs on the basis that the bargain between them can be found within the document which they have signed. They want to avoid the uncertainty of litigation based on allegations as to the content of oral discussions at pre-contractual meetings. Second, it is reasonable to assume that the price to be paid reflects the commercial risk which each party – or, more usually, the purchaser – is willing to accept. The risk is determined, in part at least, by the warranties which the vendor is prepared to give. The tighter the warranties, the less the risk and (in principle, at least) the greater the price the vendor will require and which the purchaser will be prepared to pay. It is legitimate, and commercially desirable, that both parties should be able to measure the risk, and agree the price, on the basis of the warranties which have been given and accepted.” 40. Those passages were not cited to the judge. He held that Sanderson could not rely on the acknowledgment of non-reliance contained in the second part of the entire agreement clause. He said this, at paragraph 107 of his judgment: “ … the clause is, in substance, one that excludes liability rather than precludes liability from ever occurring. The clause states that no statement or representation has been relied on. It follows that the clause can only first bite once a statement or representation has been made that is capable of being relied on. The clause bites, therefore, on a potential misrepresentation that has been made. It is not preventing words that have been uttered from being a misrepresentation at all. Furthermore, the words that were used did, as a matter of fact, as I have found, induce the contract. Thus, this clause is one which is in substance an exclusion clause to which section 3 of the Misrepresentation Act is applicable”