dcsimg

Implied terms

Strict contractual liability

Jason Rix

In the extraordinary facts of ARB v IVF Hammersmith, E had been born following a forged consent form given by ARB’s ex-partner to an IVF clinic. ARB established that the clinic had acted in breach of contract. However, public policy precluded his claim for the cost of bringing E up. ARB claimed the clinic had breached: Read More

No Comments

Do you have absolute contractual rights or a contractual discretion with Braganza limits?

Samantha Holland

In Shurbanova v Forex Capital Markets the High Court found that a clause permitting a broker discretion how to act in relation to – what the broker considered was – abusive trading strategies by a client were absolute contractual rights and therefore not subject to a Braganza duty to exercise its discretion rationally. Forex Capital Read More

No Comments

Implied terms and umbrella agreements don’t shelter clients from CFAs

Megan Betts

In Stevensdrake v Hunt, the Court of Appeal has provided yet another reminder of the stringency of the test for implied terms affirmed by the Supreme Court in Marks and Spencer v BNP Paribas. It also held that an apparent “umbrella agreement” could not govern or impact the terms of a subsequent Conditional Fee Agreement Read More

No Comments

Implied duty not to prevent performance

Jason Rix

There was an implied duty in a lease that the lessor would not prevent a management company from performing its obligations, but not one that it had to positively cooperate with the company (Wild Duck v Smith [2017] EWHC 1252 (Ch)). The dispute related to the development of holiday homes in the Cotswolds by the Read More

No Comments

Implied terms – not easy where the details haven’t been ironed out yet

Samantha Holland

In Baturina v Chistyakov the High Court refused to imply a term into a joint venture general framework agreement, which contained only outline terms, that the funding advanced by the claimant be used only for the purposes of the joint venture projects. The decision relates to a “bitter” commercial dispute between two wealthy Russian entrepreneurs over Read More

No Comments

Is this the promised end? Implied variation of a contract which has been expressly varied

Jason Rix

The Court of Appeal has held that an express variation of some terms in a contract did not create an implied variation of another term in the same the contract (Ilkerler v Perkins). Perkins had entered into a distributorship agreement with Ilkerler, a Turkish company. Perkins gave notice to terminate the agreement and Ilkerler sued for wrongful Read More

No Comments

Freedom of movement?

Richard Farnhill

When will the law impose a fetter on a bank’s express right to assign a loan? That was the question the Court of Appeal had to address in IBRC v Camden Market Holdings Corp. The relevant facts were straightforward. Camden had borrowed money from IBRC secured on real property. Under the loan agreement IBRC was Read More

No Comments

For better, for worse: further reflections on implied terms

Richard Farnhill

A number of the A&O team this week attended a seminar by Brick Court addressing the recent Supreme Court focus on various contractual issues. In the course of the afternoon Lord Hoffmann, one of the panellists, made some observations about Marks & Spencer v BNP Paribas and, in particular, its discussion of his own judgment Read More

No Comments

Being discrete: when to worry about contractual discretion

Jason Rix

Last week the Royal Swedish Academy of Sciences Nobel Prize for Economics went to Hart and Homstrom for their contribution to contract theory. Hart has considered so-called “incomplete contracts”.  These arise because it is not possible to specify every eventuality. This is where contractual discretion often comes in. We tend to use the term “discretion” quite broadly in Read More

No Comments

Good faith in English contract law – a fuss about nothing?

Jason Rix

Some English lawyers seem to distrust the concept of good faith insofar as it relates to the performance of obligations under commercial contracts. If this is the case, the good news is that it is implied infrequently and when it is implied, the requirements tend not to be that onerous. The bad news is that Read More

No Comments