중대한 부정적 영향 조항의 사례와 그 실패 – 코로나19 이후의 M&A 계약을 중심으로 -

A stock purchase agreement is closed on an agreed date if various conditions precedent are satisfied before it. Among many clauses are MAC clauses in which the Seller guarantees that there is no material adverse change or material adverse effect in the Target till the closing date(representations and warranties clause), and the Purchaser is entitled to walk away from or terminate the deal if such an R&W turns out to be not true and accurate(termination clause). These days more and more attention is paid to MAC clauses as the performance of the Target is negatively affected by the global pandemic, COVID-19 virus. This Article introduces and analyzes leading cases regarding MAC clauses both in the Common Law and the Civil Law jurisprudence. Somewhat contrary to the increasing interests in MAC clauses, their use is not as prevalent as expected by the Parties, especially the Purchaser. The causes are found both in the drafting stage and the court stage. In the drafting stage, MAC clauses are vaguely formulated, and such practices, unchanged for decades, result in inefficiency in M&A transactions. The deadweight loss that takes place in the drafting stage is intensified in the court stage as the courts worldwide interpret MAC clauses narrowly and have generally refused to apply them for the purchasers' sake. In addition, the courts in the Civil Law systems have either intentionally or unintentionally refused to examine and answer whether the rights in the Civil Law are also applicable in M&A context. Under the current drafting practices and the courts' passive interpretations and applications of the MAC clauses, the parties, especially the purchaser, are faced with difficulty in rightfully claiming their rights pursuant to MAC clauses and are failing to make the clauses even function. Several suggestions for the purchaser are made in terms of contract design, but whether this can be realized is dependent on the bargaining power of their side.