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Vol33 No3 September-November 2019

On testifying experts and their misuse of models
By Ron Bewley, PhD and Gene Phillips
 
The objective of this article is to help litigators understand the modelling process and general concepts concerning the limitations of models employed. With an improved understanding of the modelling process, litigators can gain assurance in the nature and validity of their experts’ approaches, or a more nuanced appreciation for their limitations.
 
 
Implied contracts and implied terms. Part 2 of 3
By Jeffrey Goldberger
 
This paper covers:
(1)        contracts implied or inferred by conduct;
(2)        implication of terms generally;
(3)        the duty to co-operate in contract performance; and
(4)        incorporation of terms by reference or by a course of dealing.
 
 
Incorporation by terms of reference or by a course of dealing. Part 3 of 3
By Jeffrey Goldberger
 
The identification of contractual terms may involve the application of two distinct sets of principles, namely, those which:
(1) determine the conditions for the incorporation of terms by reference or by a course of dealing;
(2) determine the conditions for the implication of terms.
Incorporation is concerned with establishing the express terms of a contract while the process of implication is concerned with the filling of gaps in an otherwise complete contract.
This section of the paper is concerned with incorporation.
The relevant principles have developed in response to a range of scenarios as follows:
(1) a party signs a contractual document without reading its provisions or without any understanding as to the meaning and effect of those provisions;
(2) a party enters into an oral contract the terms of which are said to be contained in an unsigned document;
(3) a party enters into an oral contract the terms of which are said to be established by a consistent course of dealing between the parties;
(4) a party asserts that a contract has been entered into on the basis of a set of terms and conditions put forward by that party while the other party asserts that the contract was entered into on the basis of terms put forward by that party, the so-called ‘battle of terms’.
 
 
What the rules of construction that apply to ‘reverse indemnity’ clauses?
By William John Potts
 
Few clauses attract as much attention throughout contract negotiation as indemnities, which are a severe but effective means of allocating risk and apportioning liability. Indemnities are often rejected in the first instance by the party being asked to provide the indemnity or otherwise restricted by applying a monetary cap or carving out certain categories of loss. Parties likewise often seek to limit or exclude liability attributable to the counterparty’s negligence. However, some parties continue to agree to uncapped and unlimited indemnities and even ‘reverse indemnities’, where one party indemnifies the counterparty in respect of loss or damage attributable to that counterparty’s own acts or omissions. This paper will explore the case law on reverse indemnity clauses, with the aim of ascertaining how indemnities are interpreted as a matter of contract construction, particularly in the context of negligence.

  • On testifying experts and their misuse of models
    By Ron Bewley, PhD and Gene Phillips
    page 3
  • On testifying experts and their misuse of models
    By Ron Bewley, PhD and Gene Phillips
    page 0
  • Implied contracts and implied terms. Part 2 of 3
    By Jeffrey Goldberger
    page 12
  • Incorporation by terms of reference or by a course of dealing. Part 3 of 3
    By Jeffrey Goldberger
    page 33
  • What the rules of construction that apply to ‘reverse indemnity’ clauses?
    By William John Potts
    page 46
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    Main File Type pdf
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