Frequency/market practice: Materiality qualifiers are commonly seen, but limited to specific representations and warranties; the most common materiality qualifiers are: thresholds in value, knowledge qualifiers, lookback time limitations or limited reference periods.

Frequency/market practice: Knowledge qualifiers are becoming more frequent in private deals, especially in private equity deals (where the representations and warranties are formally given by the seller, although the target company is not directly managed by the same). Italian sellers have a strong preference to make reference to the concept of actual knowledge. Knowledge qualifiers usually refer to the knowledge of a specific list of individuals, inclusive of the duty to perform due enquiries with the management of the company). In Italian deals it is important to identify a specific list of people on which the knowledge qualifier is based; the reason is that, according to case law, should a list not being provided, when the seller is a company (for which the concept of “knowledge” cannot apply) the concept of “knowledge qualifier” refers to the person having negotiated the deal (which are often people, inclusive of external advisors, without direct visibility on the management of the target company).

Frequency/market practice: Fairly common; this is still commonly requested by buyers but often resisted by sellers.

Frequency/market practice: It has been historically rare, but is becoming more common; it is often strongly requested by the seller and resisted by the buyer. The common ground approach is usually to introduce concepts of “fair” disclosure, whereby information included in the data room work s exceptions against representations and warranties to the extent they are “fairly” disclosed; the definition of “fairly disclosed” is usually a negotiation matter between the parties.