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Remedies Cumulative

The Remedies Cumulative clause states that the non-breaching party to a contract is allowed to pursue any and all remedies that may be available under the facts of the dispute, even though some of those remedies may be inconsistent with each other.

The general rule—applied by most states—is that all remedies, whether at common law, under statute, under equitable principles, are cumulative. This general rule applies only in the absence of specific contractual provisions to the contrary. A party's intent to limit cumulative remedies must be clear.

Remedies Cumulative. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties or otherwise.

Example 1

Rights and Remedies Cumulative. The enumeration of Lender's rights and remedies set forth in this Loan Agreement is not intended to be exhaustive. The exercise by Lender of any right or remedy under this Loan Agreement does not preclude the exercise of any other rights or remedies, all of which are cumulative and are in addition to any other right or remedy given under this Loan Agreement or under any other agreement between Lender and any Borrower or Guarantor or which may now or subsequently exist in law, in equity, by statute or otherwise.

Example 2

No Waiver; Cumulative Remedies. A failure to exercise or a delay in exercising, on the part of the Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall not operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

2. Discussion

2.1 Drafting Considerations

When the parties truly intend to have cumulative remedies apply, it is tempting to conclude that the modern day common law rule covers the situation and toss out the cumulative remedies provision as needless boilerplate. There are times, however, that the provision serves as more than a calcification of the common law. Perhaps most importantly, it removes uncertainty as to whether an individual state's law is applying the modern default rule or a classic election of remedies approach. A cumulative remedies provision, if purposefully chosen, also will remove possible ambiguity about whether "special" remedies provided in one portion of the contract were intended by the parties to be the exclusive remedy for a particular breach.

When determining whether or not to include a cumulative remedies provision, the contract drafter should ask:

  • Are there multiple remedies that may need to be exercised concurrently or sequentially if the other party defaults? If so, a cumulative remedies provision is advisable.
  • Are there provisions in this agreement that are intended to be the exclusive remedy for a particular breach? If so, a cumulative remedies provision should be used only after specifically excluding these provisions from its reach.
(Tina Stark, Negotiating and Drafting Contract Boilerplate)
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