Rainer Evers

Jason Rix

Yesterday I learnt that Rainer Evers, one of the team of three behind this blog, died over the weekend. It’s incredibly difficult to know what to say, not least because I can hear him tearing me apart mid-sentence for my grammatical errors and lack of clarity. Here is an example of a typical email exchange. 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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Discretion: you actually own it and you have to exercise it properly

Jason Rix

In Watson v Watchfinder.co.uk, a refusal to consent to a share option entailed an improper exercise of a contractual discretion. Watchfinder buys and sells luxury pre-owned watches. It granted an option in its shares to Watson and others who were directors of a company that was providing services to Watchfinder. The relevant provision stated “The Read More

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Contra proferentem rule when interpreting commercial contracts

Po-Siann Goh

In Persimmon Homes v Ove Arup, the Court of Appeal declined to apply the contra proferentem rule to an exemption clause in a major construction contract. The contra proferentem rule, set out by the Privy Council in Canada Steamship in the context of excluding liability for negligence, requires any ambiguity to be resolved against the Read More

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Interpretation of a software licence: access a use-ful decision

Alex Woolgar

What do the terms “use” and “access”, common in software licence agreements, actually mean in context? The High Court has recently considered this question in SAP UK v Diageo. SAP had licensed to Diageo a software package providing centralised management of several business functions (operations, HR, etc.). The licence fee payable was calculated by reference Read More

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A done deal: when a contract has been formed

Richard Farnhill

In order to consider whether a contract has been formed the court will need to look at the parties’ exchanges to determine whether an agreement has been reached. That is an objective exercise: the court puts itself in the position of a third party observer to the parties’ negotiations and determines when that third party Read More

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Troubled times: force majeure

Jason Rix

Why do we need force majeure clauses? The answer is that the common law doctrine of frustration is narrow and the consequences are blunt: the contract is “killed” with no power of suspension. The Law Reform (Frustrated Contracts) Act 1943 allows statutory adjustment but it is short, complex and difficult to navigate. Freedom of contract Read More

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Contractual estoppel: is it time for it to go?

Richard Hooley

Contractual estoppel facilitates the enforcement of an agreement on the state of facts by precluding proof of facts that contradict that agreement. It was developed in the context of preclusion of liability for (non-fraudulent) misrepresentation by providing the legal explanation for the validity of ‘no representation’ and ‘non-reliance’ clauses, which contradict the true state of Read More

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When law becomes fact – resolving a conflict of laws

Carlo Sushant Chari

The High Court has dismissed what were “always difficult and ambitious claims” in Pan Oceanic Chartering v Unipec, and has given guidance on a tricky question of conflict of laws. Pan Oceanic, a New Jersey brokerage company, sought damages for lost commissions from Unipec resulting from early termination of Unipec’s contract with a ship owner, Read More

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