March 1, 2021

Volume XI, Number 60

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February 26, 2021

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Once More Into The Breach - Or Should That Be Conflict?

A common contractual representation is that the execution and delivery of the agreement does not constitute a breach of one or more other agreements or charter documents.  Sometimes, the representation is that the execution and delivery do not "conflict with" or "violate".  Is there any difference between a "breach", a "conflict" or a "violate"?  

"Breach" is a word of Old English origin (bryce, meaning a fracture or breaking).  "Conflict" and "Violate" in contrast are of Latin origin.  At the siege of Harfleur,  King Henry V urged his troops to fill the the breach:

"Once more unto the breach, dear friends, once more;
Or close the wall up with our English dead.

W. Shakespeare, Henry V, Act III, Sc. 1. 

"Conflict" is derived from conflictus which is the singular, perfect, passive participle of confligere meaning to come together in a collision.  "Violate" is derived from violatus which is the perfect, passive participle of violare meaning to injure or dishonor.  To some, these words may connote different meanings (or shades of meaning) and it is possible that a particular agreement will define what constitutes a breach, conflict or violation.  However, I am not aware of any California precedent that assigns different meanings to these terms as a general matter.

Shakespeare generally preferred to use words of Anglo Saxon origin to those of Latin origin.  This may be attributable to Shakespeare's reportedly week knowledge of Classical languages.  As Ben Johnson, a rival remarked, Shakespeare knew "small Latin and less Greek".  However, I believe that the power and appeal of Shakespeare's plays is partly due to his use of Anglo Saxon and Old English words.

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© 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 22
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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
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Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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