Corporate and commercial | 01 November 2014

All too often parties amending a term of a contract will give insufficient consideration to how the amended term will interact with the remainder of the contract. Where the contract contains a liquidated damages clause, parties must be alive to the fact that the amendments may lead to a change in the value of the contract and should, therefore, trigger a review of the specified damages to ensure they have not become penal.
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Corporate and commercial | 01 October 2014

Contractual terms relating to the payment of bonuses by one party to another are ripe for dispute, particularly where those terms involve the exercise of discretion by the paying party. The proceedings brought by Andrew Brogden and Robert Reid against Investec Bank (Brogden & anor v Investec Bank Plc [2014]) are a further reminder of the necessity for absolute precision in the drafting of such terms. While the claim was resoundingly dismissed, the judgment contains a number of points of interest from the perspective of contractual interpretation, particularly with respect to the ‘types’ of discretion to which limitations/obligations will be implied. 
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Corporate and commercial | 01 June 2014

Many parties will require that certain aspects of a contract are to be performed in a timely manner. Indeed, written contracts will often include provisions that ‘time is of the essence’. The benefit of making time of essence is that this stipulation becomes a condition of the contract: if the performing party fails to perform the obligation within the required period, the other party can choose whether to terminate or affirm the agreement and also claim damages. A breach of a condition is a repudiatory breach, as it is considered to be an outright refusal to perform the contract. There is clearly a huge advantage to parties that are able to terminate commercial relations that have broken down immediately, rather than playing out a notice period and possibly incurring further loss or damage.
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Corporate and commercial | 01 May 2014

When a party with which you have contracted informs you that they no longer intend to perform their obligations, this will amount to a repudiatory breach entitling you to terminate the agreement and seek damages. In such a case, you should be entitled to recover the amount that would put you in the same position financially that you would have been in had the contract been properly performed. In other words, contractual damages should represent the net loss suffered as a result of being unable to enforce the agreement.

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Corporate & Commercial | 01 April 2014

In AB v CD [2014] the High Court held, with a degree of uncertainty, that the fact that contractual damages are subject to a limitation clause does not mean that those damages are not adequate, as required for the granting of an injunction under the American Cyanamid1 guidelines. [Continue Reading]

Corporate and commercial | 01 December 2012

Commercial contracts will very often be the subject of negotiation between parties, and during those negotiations things will be said or recorded, often to assure or comfort one of the parties, that do not appear in the terms of the written contract. Difficulties will inevitably arise where a party relies on such statements and there will often be a degree of uncertainty as to whether such a party 
is able to seek redress should they suffer loss as a result. 
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Corporate & Commercial | 01 September 2011

The courts are regularly asked to imply terms into contracts, and will do so where it can be found that such an implication would reflect the true intentions of the parties. In certain cases, the courts are assisted by rules of construction that create a presumption against a particular intention of the parties.

One such example, is the well-established presumption that parties do not intend that either party should be able rely on its own breach of obligations to avoid a contract or obtain any benefit under it, unless the contrary is clearly provided for by the contract (New Zealand Shipping Co v Société des Ateliers et Chantiers de France [1919] AC 1). [Continue Reading]

Corporate and commercial | 01 February 2011

In the recent case of Crest Nicholson (Londinium) Ltd v Akaria Investments Ltd [2010], the Court of Appeal was once again tasked with confirming the proper test for offer and acceptance.

This article will provide an overview of the rules of offer and acceptance, in addition to a brief review of Crest Nicholson, and key points arising for practitioners and their clients. 
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Corporate and commercial | 01 December 2010

Remedies for contractual disputes are traditionally compensatory in nature, with damages assessed based on the loss suffered by the claimant. Restitutionary remedies, however, focus on any unfair benefit (known as ‘unjust enrichment’) to the defendant at the claimant’s expense, with the aim of restoring that benefit to the claimant. Restitutionary remedies are therefore distinct from traditional remedies, but in some circumstances are essential to ensuring a client can obtain an appropriate remedy.

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