The Digital Economy team ran a webinar on 6 May 2021 which provided a practical guide to some of the key developments in English contract law over the last 18 months and the cases behind them.
Key takeaways from this session:
- Clear and concise drafting remains paramount. Say what you mean and be precise with drafting to avoid disputes around construction. The court will not shy away from what it sees as the correct construction of a clause just because it creates a bad bargain for a party.
- Be careful when using boilerplate clauses - consider all provisions carefully, including the ones you take for granted, to ensure your client is effectively protected.
- Consider the facts of the transaction at hand, and potential losses which your client could incur, and draft for them expressly in the contract to maximise your chances of recoverability.
- While Force Majeure events are typically considered circumstances outside the reasonable control of a party, just listing examples of events such as "riots" or "fire" will not necessarily be determinative. The terms of the contract will be applied to the facts of the situation, and the court will still scrutinise whether a party (acting reasonably) could and should have prevented the event, irrespective of the surrounding context.
- Always look at any procedural steps set out in the contract before taking action, and then follow the process. This is particularly important where serving notice to terminate a contract.
- If you are involved in relational contracts, be aware that a term of good faith and cooperation may well be implied by the court.
- Define "wilful default" so as to ensure that you capture to motive, as well as the conduct, of a party. Without a definition, the courts are likely only to consider whether the conduct was intentional and deliberate, not consider the motive of a party to determine whether actions were "wilful".
A recording of the session and webinar slides are available below.
A transcript of the webinar is also available.
