Christopher Morris sets out the current position on advanced payment apportionments and the law of implied contractual terms ‘The decision in M&S has had a tangible effect on property law and real estate practice.’ Just over a year on from the Supreme Court’s decision in Marks & Spencer plc v BNP Paribas Securities Services Trust …
Continue reading "Break Clauses: Rigour not reasonableness"
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Paul Brehony and William Gow consider the pendulum of case law in contractual interpretation ‘Parties should draft express provisions to clarify intention and not rely on pre-contractual representations or negotiations.’ In Investors Compensation Scheme Ltd v West Bromwich Building Society [1997], Leggatt LJ cited Alice Through the Looking Glass when rejecting the interpretation adopted by …
Continue reading "Contract: Nohow or contrariwise"
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In the second of two articles, Chris Parker, Gregg Rowan and Nick Pantlin look at the judicial implication of a duty of good faith ‘The precise formulation of the duty differs between cases, but the essence seems to be a requirement to exercise the discretion honestly and in good faith, and not to act in …
Continue reading "Contract: Gotta have faith"
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Dov Ohrenstein investigates a recent case of implied terms ‘A term will only be implied (other than if required to be implied by statute) if it satisfies the test of business necessity or it is so obvious that it goes without saying.’ The decision of the Supreme Court in Marks & Spencer plc v BNP …
Continue reading "Contract: Buy one get one free"
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Darrell Chiheb reviews a case clarifying the position on break clauses, which reasserts the importance of express over implied terms ‘While it may be tempting for a court to construe an instrument by the inclusion of implied terms to make it fairer or more reasonable, the court will use this power in only exceptional circumstances.’ …
Continue reading "Break Clauses: The letter of the law"
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Mark Lawrence and Jonathan Pratt investigate recent Supreme Court guidance on break rights and implied terms ‘All five members of the Supreme Court were clear that… a term can only be implied into a contract where it is necessary to make that contract work. This should, therefore, be the starting point for anyone involved in …
Continue reading "Contract: Something for everyone"
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Clare Arthurs and Sebastian Kokelaar examine the role of commercial common sense in the interpretation of contracts after Arnold v Britton ‘Arnold does not represent a radical departure from what was said in Rainy Sky about commercial common sense. Both decisions underline the primacy of the words used by the parties.’ In the case of …
Continue reading "Contract: No Rainy Sky over the Gower Peninsula"
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Wills & Trusts Law Reports | May 2015 #149This decision concerned the construction of a trust deed dated 28 November 1944 (the deed) made between Eric Max Warburg on behalf of the Warburg family, Viscount Lee of Fareham on behalf of the Warburg Society, and the University of London (UOL). There arose questions about the scope of the deed, the ownership of property, the status of funding and the propriety of the administration by UOL under the deed. UOL brought a construction summons to determine these questions at the behest of HM Attorney General (the second defendant). The first defendant was Professor John Prag, of the Univer...
John Starr discusses the various outside influences that make up a construction contract ‘Building contracts are not designed to be complete, even on their own express terms, still less in respect of outside influences, such as pre-contractual representations, or terms implied by law or otherwise.’ A building contract, like any other contract, is, to an …
Continue reading "Construction Focus: Is your building contract complete?"
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