Report on Third-Party Remedies Opinions - 2007 Update
Appendix 1: Glossary

1987 Real Property Report -- Joint Committee of the Real Property Law Section of the State Bar of California and the Real Property Section of the Los Angeles County Bar Association, Legal Opinions in California Real Estate Transactions, 42 Bus. Law. 1139 (1987).

1989 Report -- Committee on Corporations of the Business Law Section of the State Bar of California, 1989 Report of the Committee on Corporations of the Business Law Section of the State Bar of California Regarding Legal Opinions in Business Transactions (1989), 45 Bus. Law. 2169 (1990).1

1989 UCC Report -- Uniform Commercial Code Committee of the Business Law Section of the State Bar of California, Report Regarding Legal Opinions in Personal Property Secured Transactions (1988), 44 Bus. Law. 791 (1989).

1992 Report -- Business Law Section of the State Bar of California, Report on the Third-Party Legal Opinion Report of the ABA Section of Business Law (1992).

1998 TriBar Report -- The TriBar Opinion Committee, Third-Party "Closing" Opinions, 53 Bus. Law. 591 (1998).

2001 Statement -- Business Law Section of the State Bar of California, Statement of the Business Law Section of the State Bar of California (2001).

2001 Survey -- A survey conducted by the Opinions Committee regarding customary practices in California concerning third-party remedies opinions. The survey questions used in the 2001 Survey are set forth in Appendix 5, and the results of the 2001 Survey are set forth in Appendix 6.

2002 Compendium -- Business Law Section of the State Bar of California and Real Property Law Section of the State Bar of California, 2002 California Opinion Reports. The 2002 Compendium contains the following reports and statements:

  • 1987 Real Property Report
  • 1989 Report
  • 1989 UCC Report
  • Joint Committee of the Real Property Law Section of the State Bar of California and the Real Property Section of the Los Angeles County Bar Association, Legal Opinions in California Real Estate Transactions: An Addendum (March 14, 1990).
  • 1992 Report
  • Joint Committee of the Real Property Law Section of the State Bar of California and the Real Property Section of the Los Angeles County Bar Association, 1995 California Real Property Legal Opinion Report.
  • Joint Committee of the Real Property Law Section of the State Bar of California and the Real Property Section of the Los Angeles County Bar Association, First Supplement to 1995 California Real Property Legal Opinion Report (1998).
  • Partnerships and Limited Liability Companies Committee of the Business Law Section of the State Bar of California, Report on Legal Opinions Concerning California Partnerships (1998).
  • Partnerships and Limited Liability Companies Committee of the Business Law Section of the State Bar of California, Report on Legal Opinions Concerning California Limited Liability Companies (2000).
  • 2001 Statement
  • Joint Committee of the Real Property Law Section of the State Bar of California and the Real Property Section of the Los Angeles County Bar Association, Statement of the Joint Committee of the Real Property Law Section of the State Bar of California and the Real Property Law Section of the Los Angeles County Bar Association (2001).
  • Joint Committee of the American Bar Association, Section of Real Property, Probate and Trust Law, Committee on Legal Opinions in Real Estate Transactions, Subcommittee on Creation of an Inclusive Opinion, and the American College of Real Estate Lawyers Attorneys' Opinion Committee, Inclusive Real Estate Secured Transaction Opinion in which are Incorporated the Principal Concepts of the ABA Section of Real Property, Probate and Trust Law and the American College of Real Estate Lawyers Report on Adaptation of the Legal Opinion Accord.

2005 UCC Report -- Uniform Commercial Code Committee of the Business Law Section of the State Bar of California, Report of the Uniform Commercial Code Committee of the Business Law Section of the State Bar of California on Legal Opinions in Personal Property Secured Transactions ( 2005).

2007 Report -- Corporations Committee of the Business Law Section of the State Bar of California, Legal Opinions in Business Transactions (Excluding the Remedies Opinion) (2007 printing).

ABA -- American Bar Association.

ABA Committee -- Committee on Legal Opinions, American Bar Association.

ABA Guidelines -- Committee on Legal Opinions, American Bar Association, Guidelines for the Preparation of Closing Opinions, 57 Bus. Law. 875 (2002).

ABA Principles -- Committee on Legal Opinions, American Bar Association, Legal Opinion Principles, 53 Bus. Law. 591 (1998).

Accord -- The "Legal Opinion Accord" contained in the Accord Report.2

Accord Report -- Committee on Legal Opinions, American Bar Association, Third-Party Legal Opinion Report, Including the Legal Opinion Accord, 47 Bus. Law. 167 (1991).

assumption -- An assumption applicable to an opinion regarding a matter of fact, a matter of law or a matter of both fact and law. Some assumptions are specifically stated in an opinion letter, while others are "understood" and may or may not be specifically stated. Compare exception.

bankruptcy exception -- An exception to an opinion excluding from the opinion the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws affecting the rights and remedies of creditors generally. Appendix 10 discusses the bankruptcy exception.

Business Law Section -- The Business Law Section of the State Bar of California. See also Section.

California Qualifications -- the "California Qualifications" set forth in the 1992 Report.

California UCC or Cal. UCC -- The Uniform Commercial Code, as adopted in California.3

closing opinion -- See opinion letter.

Corporations Committee -- The Corporations Committee of the Business Law Section of the State Bar of California.

equitable principles limitation -- An exception to an opinion excluding from the opinion the effect of general principles of equity, whether applied by a court of law or equity. Appendix 10 discusses the equitable principles limitation.

exception -- An exception, limitation, qualification or exclusion to a legal opinion. Some exceptions are specifically stated in an opinion letter (such exceptions are frequently referred to as a "laundry list" when they are numerous), while others are "understood" and may or may not be specifically stated. See also bankruptcy exception and equitable principles limitation. Compare assumption.

general assurance -- A statement supplementing a remedies opinion expressing (notwithstanding all the exceptions otherwise stated in a remedies opinion) that the opinion recipient has available to it "legally adequate remedies for the realization of the principal benefits intended to be provided" (or similar language) by the contracts covered by the remedies opinion. A general assurance is inappropriate in a remedies opinion, and an opinion recipient should not request one. Appendix 11 discusses general assurances.

generic exception -- An exception to a remedies opinion stating that certain provisions contained in an agreement may be limited or rendered ineffective or unenforceable by reason of applicable laws and judicial decisions governing such provisions. Appendix 11 discusses the generic exception..

Glazer, FitzGibbon & Weise -- Donald W. Glazer, Scott FitzGibbon & Steven O. Weise, Glazer and FitzGibbon on Legal Opinions: Drafting, Interpreting and Supporting Closing Opinions in Business Transactions (2d ed. 2001).

laundry list -- The list of separately stated exceptions to a remedies opinion (sometimes used to refer to a very long or overly cautious list). Appendix 10 discusses whether it is or should be customary practice to state exceptions to survey provisions separately.

opining jurisdiction -- a jurisdiction whose applicable law an opinion giver addresses in an opinion letter. If there is more than one such jurisdiction (e.g., the United States and a particular state), the term refers collectively to all.

opinion giver -- The lawyer or law firm in whose name the opinion letter is signed.

opinion letter -- A letter generally delivered at the closing of a business transaction by counsel for one party to the transaction to another party, that expresses counsel's conclusions on various matters of legal concern to that other party. As the opinion giver does not deliver the opinion letter to its own client, but rather to another party at a closing, an opinion letter is also referred to as a "third-party" legal opinion or a "closing" opinion.

opinion preparers -- The lawyers in a law firm who have the responsibility to prepare an opinion letter.4

opinion recipient -- The addressee of the opinion letter and others, if any, granted permission by the opinion giver to rely on the opinion letter. The opinion recipient ordinarily receives the letter as a participant in a business transaction.

Opinions Committee -- The Opinions Committee of the Business Law Section of the State Bar of California. Appendix 2 sets forth a list of the members of the Opinions Committee as of September 2004 and as of August 2007.

Other Common Qualifications -- The "Other Common Qualifications" described in the Accord.

remedies opinion -- An opinion concerning whether the provisions of an agreement will be given effect by the courts. A remedies opinion is also frequently referred to as an enforceability opinion.

Restatement -- American Law Institute, Restatement (Third) of the Law Governing Lawyers (2000).

Section -- The Business Law Section of the State Bar of California. See also Business Law Section.

survey provisions -- Certain commonly found contractual undertakings drawn from other opinion reports and the 2001 Survey. Appendix 10 discusses the survey provisions.

TriBar or the TriBar Committee -- The TriBar Opinion Committee, which includes members of the following organizations functioning as a single committee: (i) Special Committee on Legal Opinions in Commercial Transactions, New York County Lawyers' Association; (ii) Corporation Law Committee, The Association of the Bar of the City of New York; and (iii) Special Committee on Legal Opinions of the Business Law Section, New York State Bar Association. In recent years, members from some states other than New York have joined the committee.

Umbrella Report -- Business Law Section of the State Bar of California, Report on Third-Party Remedies Opinions (2007). The Umbrella Report refers to the report itself, but not its appendices.

undertaking -- a specific promise in a contract or agreement, as opposed to the entire contract or agreement. Thus, a contract or agreement typically contains many "undertakings."

Endnotes

1 The 1989 Report was revised and restated by the Corporations Committee in the 2007 Report (except for the 1989 Report's discussion of the remedies opinion, which is revised and restated by the Umbrella Report and its appendices). Back

2 The Accord is occasionally referred to as the "Silverado Accord," as the lawyers who worked on the Accord Report held their initial conference at the Silverado resort in Napa, California. Back

3 As the consequence of statutory naming conventions in California, the California UCC contains "Divisions" instead of "Articles." Divisions 1 through 9 of the California UCC correspond to the identical Article numbers of the Uniform Commercial Code, as published by the National Conference of Commissioners on Uniform State Laws (the "UCC"). Division 10 of the California UCC corresponds to Article 2A of the UCC. Division 11 of the California UCC corresponds to Article 4A of the UCC. Back

4 If a particular lawyer takes responsibility only for a specific opinion, for example, a lawyer specializing in California UCC matters with regard to an opinion on perfection of a security interest, that lawyer is an opinion preparer only as to that opinion and not as to all the other opinions in the opinion letter. Back

Appendix 2 / Report on Third-Party Remedies Opinions