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CLQ Vol33 No4 Dec 2019-Feb 2020

‘Entire agreement’ clauses: how effective?
By John Eldridge
 
This paper will proceed in three parts. It will first examine the question of whether an ‘entire agreement’ clause might be effective to prevent a court from having recourse to extrinsic evidence as an aid to the construction of a contract’s express terms. It will then proceed to examine the question of whether, and when, such a clause might be effective to exclude implied terms which might, in the absence of such a clause, form part of the parties’ bargain. Finally, it will consider the effectiveness of an ‘entire agreement’ clause in robbing a pre-contractual representation of its legal effect. As will be seen, this final section will include a discussion of a number of separate ways in which such a representation may affect the parties’ legal rights and obligations. In addition to the possibility of such a representation amounting to a promise which is enforceable in contract (whether as a term of the parties’ main contract or pursuant to a collateral contract), consideration will also be given to the possibility of such a representation giving rise to rights founded upon a basis other than contract.
 
 
How to exclude good faith?
By Elisabeth Peden SC
 
Good faith remains a contractual concept that is in flux. Different courts take different approaches, and different jurisdictions in the common law world also are not ad idem. The key issues for transactional lawyers are trying to identify at the time of formation the way in which any good faith content will impact on their contract: will it create uncertainty, and how might drafting avoid or lessen that impact?
 
Unlike other boilerplate clauses, contract clauses that deal with issues of good faith are usually bespoke. Generally speaking, parties who address good faith do so by either excluding any implied term of good faith that may otherwise be incorporated by a court, or by expressly dictating how discretions may be exercised, with a view to avoiding the incorporation of a different standard that may involve good faith and reasonableness.
 
 
Self-imposed writing requirements for contract variation
By J W Carter
 
Subject to statute, a contract may be wholly or partly in writing, oral but evidenced by writing or purely oral. This general rule applies to a contract to vary an existing contract.
 
A major disagreement has however emerged concerning boilerplate provisions that require writing for contract variation. According to the Supreme Court of the United Kingdom in MWB Business Exchange Centres Ltd v Rock Advertising Ltd, compliance with the clause is mandatory. A non-compliant agreement is ineffective. This is a departure from the conventional view that the parties may vary the contract without complying with the clause. 
  • 'Entire agreement' clauses: how effective?
    By John Eldridge
    page 3
  • How to exclude good faith?
    By Elisabeth Peden SC
    page 9
  • Self-imposed writing requirements for contract variation
    By J W Carter
    page 16
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    Main File Type pdf
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