Model Closing Opinion Letter (Annotated) - American Bar Association

Opinion Paragraphs
equitable principles limitation. See also the TriBar Remedies Report
for a process that can be used to determine whether to include
express exceptions or assumptions.
Examples of additional express qualifications and limitations are
set forth for illustrative purposes in paragraphs (E)(1) through (E)(4)
(pp. 102 to 103, below) and optional paragraphs (E)(5) through
(E)(8) (pp. 107 to 108, below). Other qualifications to the Remedies
Opinion may be deemed accepted without being explicitly stated
therein (see note 3, “Which Laws Are Addressed?,” p. 71, below).
1. Formation of Contract.
As noted above, the Remedies Opinion means, in part, that the
Company is bound by the agreement. The Opinion thus confirms
compliance with applicable requirements for the formation of a
contract, and confirms that the agreement complies with any contract
law requirements with respect to form. An unqualified Opinion
could not be given, for example, about a bond that did not
comply with a statutory requirement for a seal or about an instrument
that did not contain a notarization as required by applicable
law. The Opinion also confirms that the Company’s obligations are
supported by consideration to the extent required by applicable contract
law. In the case of an exchange of promises, counsel may assume,
without explicit disclosure, that the agreements of the other
party are binding on it and enforceable by the Company (see item 3
of the note to (B)(4), p. 96, below).
2. Provisions of Agreement to be Given Legal Effect.
(a) The Legal Opinion Committee is of the view that the Remedies
Opinion should be interpreted to mean that a court would give legal
effect to all the obligations of the client in the agreement 12 —not
just the material or essential provisions—either by requiring performance
of those obligations or by granting the other party money
damages or some other relief. An exception would be required to be
stated if under applicable law (i) a remedy specified in the agree-
12. See TriBar Report § 3.1 n.69; Glazer § 9.7. California takes a somewhat
different approach, but the result is the same. See State Bar of California
Business Law Section, Report on Third-party Remedies Opinions
(September 2004).
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