Let’s look at the key points of the new version of the MYBA Memorandum of Agreement – Part One
by Federico Santini*
The Myba Memorandum of Agreement (also known as the Moa) is a contract form approved by Myba (Mediterranean Yacht Brokers Association) and most commonly used internationally for the sale and purchase of used yachts. It is a standard contract governed by English law, which consists of a first part, corresponding to the first two pages, to be filled in with the description of the yacht and the specific conditions of sale that are the result of negotiations between the parties, and a second part consisting of standard clauses governing the Seller’s rights and obligations, and finally the general conditions of the sale. Having been widely used and respected by brokers and lawyers for many years, the Moa has been an essential instrument in the buying and selling used yachts.
THE MEMORANDUM OF AGREEMENT HAS FOR MANY YEARS BEEN AN ESSENTIAL INSTRUMENT IN THE BUYING AND SELLING
OF USED YACHTS.
Not everyone knows, however, that a new version of the Moa was launched in 2021. It is an update of the model that has been used since 2008 with the aim, on the one hand, to bring it more in line with current market practices and with changes in regulations and, on the other hand, to prevent a number of contractual aspects that are in practice susceptible to disputes between the parties. However, almost two years after the introduction of the E-Moa 2021, the previous version of the contract is still predominantly used, and this is undoubtedly due to the fact that the new version is electronic and can only be completed and used by brokers registered with the Myba. Therefore at least for the time being, brokers who are not members of the association and, above all, lawyers who normally assist the parties in drafting the Moa and its addenda are, at least for now, excluded from accessing this document.
The decision not to allow lawyers to prepare the contract directly and to be able to exchange the drafts prior to signing, except with the broker’s constant intervention on the text, inevitably represents a major obstacle to the dissemination of the new version and the application in the practice of the changes introduced. Therefore, it is hoped that the Myba will approve a widening of the audience of users who can have access to the E-Moa 2021, certainly by adding lawyers active in the yachting sector. This requirement has been expressed several times by many of the most established international law firms and is certainly to be welcomed since the changes made are undoubtedly useful and opportune in the light of the experience and market practice. We therefore begin our examination of these changes which we will continue in the next issue.
A first amendment, and also the most significant, concerns Clause 15 (Seller’s Warranty) which has been extended in two respects, compared to the previous version which only provided for the warranty regarding the Seller’s ownership of the yacht and the absence of mortgages, debts and claims over the yacht. On the one hand, a specific guarantee has been inserted regarding the absence of liability for the payment of Vat on the yacht until the date of completion of the sale in relation to the Vat status of the yacht which, in fact, must be declared in the new box (L) Eu Vat Status, introduced on the first page of the Moa. On the other hand, a specific guarantee has been inserted regarding the absence of debts and/or liabilities deriving from previous charter contracts operating in the case of commercial yachts, which in fact must now be declared in the new box (K) Plesure or Commercial Yacht, introduced on the first page of the Moa.
Of particular importance is the introduction of the Vat guarantee, as this is an absolute change in perspective with obvious consequences in terms of liability. In fact, under the previous regime, the seller did not provide any guarantee and the buyer had the burden of verifying the seller’s correct application of Eu Vat law before signing the Moa and/or completing the sale, with no recourse against the seller in the event of subsequent disputes by the tax authorities. We will continue our analysis of the changes introduced in the Moa in the next issues.
(The new version of the MYBA Memorandum of Agreement – Barchemagazine.com – January 2024)
