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Implied terms

Mocha-Mamas, implied terms and entire agreement clauses

David Siesage

In Hipwell v Szurek, the Court of Appeal considered an entire agreement clause and implied a term into a lease making the landlord responsible for the installation and maintenance of electric wiring. Ms Szurek rented premises from Mr Hipwell, which she ran as a café called Mocha-Mamas. One year into the lease, Ms Szurek began Read More

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Fetter not risk it: avoiding penalties and curtailing contractual rights

Jason Rix

Last week, Richard Hooley gave one of his regular talks on recent developments in banking and finance law. Below I have set out a couple of knotty contractual issues I noted down: “Clever” (or careful) drafting may stop a clause being a penalty (Holyoake v Candy). A requirement to pay a redemption amount on voluntary early Read More

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Implied terms: nightmare on Kensington High Street

David Siesage

In Clin v Walter Lilly, the Court of Appeal held that it was necessary to imply a term into a construction contract to deal with planning permission. Mr Clin had contracted with Walter Lilly to create a single house from two adjoining properties in Kensington – a project that would involve extensive demolition, reconstruction and Read More

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Powder-tools for construction and termination

Alex Woolgar

The Court of Appeal decision in Kason Kek-Gardner Limited (KKG) v Process Components Limited (PCL) covers, first, what extrinsic evidence is relevant to construction and, second, what limitations can be implied into a confidentiality undertaking? PCL bought assets (including intellectual property) relating to certain businesses of Kemutec Powder Technologies, as Kemutec entered administration. Ten days Read More

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Implying an obligation to indemnify: the Jersey law perspective

William Palmer

In First Names v IFG, the English High Court determined that, under Jersey law, a company’s implied obligation to indemnify an employee will arise where it is considered necessary to ensure the employee’s employment contract is not futile, inefficacious or absurd. First Names was incorporated in Jersey and provided corporate and trust-management services. As part Read More

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Contractual right or discretion? How to tell the difference and why it matters.

Jason Rix

Richard Hooley gave Allen & Overy a talk about “contractual discretions” versus contractual rights. It is a topic we have covered a number of times on this blog and, one which still the courts are grappling with. Richard covered a lot of ground; below I highlight a few practical points he drew out. Contractual discretion has Read More

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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

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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

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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

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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

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