You are buying a company and are concerned about hidden
liabilities, so the seller has agreed to give certain
representations and warranties to address your concerns. You are,
however, worried that by the time you discover a breach of these
representations and warranties, the seller will no longer be
required to indemnify you. Can you negotiate for these
representations and warranties to survive beyond statutory
limitation periods?
Survival clauses specify how long after the closing of a
transaction parties may make a claim for indemnification based on a
breach of representations, warranties and covenants. Survival
periods often expire before statutory limitation periods,
restricting the time available for making a claim. There are
circumstances, however, where parties may instead wish to include a
longer survival period for certain representations and warranties
and to extend the limitation period for making claims when they are
breached. Longer survival periods are
