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Bulletin
Commercial Contracts Bulletin - April 2012

Date:
16 Apr 2012
 

In this issue, we look at some important decisions and key legislative changes since the beginning of 2012, which we believe will have a significant impact on the way you and your competitors will approach the preparation and negotiation of commercial contracts.

Please click on the link below to view the full Bulletin. In this issue we discuss:

Contractual duty to 'arrange' found not to be an absolute obligation

In this case, the Court noted that the word 'arrange' does not bear the same meaning as 'ensure'. This case highlights the importance of using clear wording when intending for obligations to be absolute.

At what point can an email form a contract?

With a substantial number of pre-contractual negotiations taking place via email, it is important to consider at what point an email exchange can form a contract.

Reading Between the Lines: Exclusion of Liability for Implied Terms under the Sale of Goods Act 1979

The Judge in this case has departed from previous authorities and decided that an exclusion clause, which did not refer to the word 'conditions', was nevertheless sufficiently clear to exclude liability under SOGA.

Consumer Contracts: Can an unfair term or commercial practice invalidate the entire agreement?

The European Court of Justice has been asked to consider whether a contract is automatically void if it (i) contains an unfair term; and/or (ii) was entered into as a result of unfair commercial practice.

Implied Terms: Is the reasonable observer legally trained?

The courts may, in certain circumstances, imply terms into contracts depending on the information available to the parties at the time of transacting. This recent case considers the extent to which information can be said to be 'available' to the parties, even if it is outwith their own knowledge.

This time it's personal

Recently, a buyer under a share purchase agreement narrowly missed out on making a claim for breach of warranty because it failed to satisfy contractual provisions relating to personal delivery of notices of claim and legal proceedings on the seller within agreed limitation periods.

The Blue Pencil Test: A Reminder of the Rules on Severability

Where a clause is held to be unenforceable under European law, it is for the domestic law to decide whether the clause is severable or will result in the downfall of the agreement in its entirety, as this case demonstrates.

Repudiatory Breach of Contract

Damages cannot be claimed for the period after termination of an agreement where termination was initially based on the wrong reason, even if the termination is subsequently justified by the discovery of a legitimate reason for termination.

Living in a material world…

We review the main points to consider in relation to material breach, the tests applied by the courts and the issues to bear in mind when drafting material breach clauses.

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