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Drafting and negotiating an entire agreement clause—checklist This Checklist sets out key issues to consider, and provides practical guidance, when drafting and negotiating entire agreement clauses in a business-to-business (B2B) contract. It considers the implications of common law and statutory controls, including the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967 (MA 1967). The purpose of an entire agreement clause is to give the parties certainty that the entirety of the agreement between them is set out in writing and to ensure that any pre-contractual representations, statements, arrangements or discussions will not form part of the agreement they are entering into. Statements are often made by one party to another as part of the pre-contract negotiations (for example as part of a sales process). Disputes can arise around whether, or which, statements are intended to form part of the contract or potentially give rise to other remedies. Depending on the facts, a pre-contractual statement might take legal effect (and give rise to remedies). For more information, see Practice Note: Pre-contractual representations and statements....
Probate actions—table of cases Testamentary capacity Topic Case name Summary Author Testamentary capacity Oliver v Oliver [2024] EWHC 2289 (Ch) News Analysis: Will set aside for lack of testamentary capacity and undue influence (Oliver v Oliver)This case provides a rare example of a successful challenge to a Will on the grounds of lack of testamentary capacity and undue influence where the Will was professionally drafted, a transcript of the testator's instructions was available to the court, and a certificate had obtained from the testator's GP. Alexandra Rogers, managing associate at Foot Anstey LLP. Testamentary capacity Leonard v Leonard (by her litigation friend Sharon Thompsett) [2024] EWHC 321 (Ch) News Analysis: High Court provides guidance on the test for testamentary capacity (Leonard v Leonard)The High Court provides analysis and clarification of the test in Banks v Goodfellow and reaffirms the role of expert evidence in capacity cases. George Vare, barrister at Serle Court Chambers Testamentary capacity Wilkinson and others v Hicken [2023] EWHC 1983 (Ch) News Analysis:...
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Administration actions—personal representatives and the deceased's liabilities An individual may assume obligations, for example in respect of contracts, covenants, debts, duties and, generally, those obligations will subsist after the individual’s death and may be enforceable against the estate. Although the personal representatives (PRs) were not a party to the arrangements, they should understand their potential liability to avoid litigation (Hambly v Trott (1776) 1 Cowp 371). The effect of this survival of obligations depends on the form of obligations involved. Personal contracts The general rule is that the death of one of the parties to a contract does not discharge the contract. Where the contract is of a personal nature then, unless there has been a breach of the contract prior to the death, the general rule does not apply. Where there is already a subsisting right of action under the contract, or for breach of contract, the death of either party disapplies the rule. The effect of the general rule can be illustrated as follows: • an...
Resolving derivatives disputes—key cases This Practice Note sets out certain key cases and associated analysis that is relevant to derivatives lawyers. The cases are divided by topic area and include: • Derivatives cases relating to capacity to enter into transactions • Derivatives cases relating to classification of swaps • Derivatives cases relating to wagering or gaming • Derivatives cases relating to constructing ISDA master agreements • Derivatives cases relating to payments and close-out amounts • Derivatives cases relating to disputes on jurisdiction • Derivatives cases relating to the mis-selling of derivatives or LIBOR manipulation • Derivatives cases relating to tax issues, and • Derivatives cases relating to regulatory issues Derivatives cases relating to capacity to enter into transactions Names of parties Judgment date Case summary Relevant analysis and articles UniCredit SpA v EUR SpA CL-2021–000263, Commercial Court, King’s Bench Division of the High Court of Justice of England and Wales UniCredit sued an Italian publicly owned asset manager in London (EUR SpA) to enforce the terms of an...
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Agreement to suspend limitation—standstill agreement This Agreement is dated [insert day] of [insert month] 20[insert year] Parties 1 [Insert full name and address of individual or company name, number and address of registered office] (Party A) 2 [Insert full name and address of individual or company name, number and address of registered office] (Party B) each a ‘Party’ and together the ‘Parties’ The parties agree: 1 Definitions and Interpretation Dispute • means any claim arising out of or connected with [Insert description of the dispute/circumstances giving rise to the dispute]. Proceedings • means court proceedings in England and Wales and any arbitration in relation to the Dispute. Period of Suspension • means the period which begins on the date of this Agreement and continues until it is terminated in accordance with clause 3. 1.1 Save where the context otherwise requires, in this Agreement: 1.1.1 words in the singular include the plural and vice versa; 1.1.2 reference to one gender includes a reference to the other genders; 1.1.3 any...
This report is a template legal due diligence report for use in connection with a proposed share purchase, to be prepared by the buyer's solicitors on the instructions of the buyer. This is a standard, long form (or detailed) report, which comprises a detailed review of the target group and its business. An ‘exceptions’ report is a shorter version of this report that details only exceptional matters of particular relevance to the proposed transaction and importance to the client generally. This may be preferable for the client in the circumstances of the transaction (eg there is a limited time available to conduct the review or the client has sufficient information on the target). However, clear instructions should be taken to ensure that the correct form of the report is prepared. Ireland—Legal due diligence report—private M&A—share purchase Project [insert project name] Prepared for [Insert addressee name] [Insert date of report] INDEX Report A. Introduction B. Executive summary C. Detailed report 1 Corporate and structural matters 2 Business and trading arrangements 3...
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I have received a force majeure notice from my supplier, what do I do? The first thing to do is to unearth the relevant contract. The notice will have been served pursuant a force majeure clause in that contract. The second is to construe the clause. Force majeure clauses come in a great variety of forms. Its construction will depend on the particular contract and the particular business. Certain preconditions apply, eg are there stipulations as to the exercise of the clause, for example, does the supplier have to serve the notice within a particular time, or in a particular form. Has it observed these? If not, depending on the construction of the clause, the precondition may be classed as a condition precedent which would need to be followed to invoke the clause or as an intermediate term, the non-fulfilment of which does not deprive the supplier of the ability to invoke the clause. The customer needs to be careful not to waive such stipulations or...
Where parties enter into a contract for a loan in 2009 with no payment plan and no final date for repayment can court proceedings be commenced given the loan was to be paid back as soon as possible? The court would ordinarily imply reasonable terms for repayment and if a reasonable period has passed and no payment made then the lender can sue. The real problem, however, is that the period of limitation is six years from the breach of the contract and this might have expired already given the loan was taken out in 2009. It depends on the amount borrowed and the reasonable amount of repayments whereby one can calculate the
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This week's edition of Property weekly highlights includes: progress of the Renters’ Rights Bill, the first reported decision on the interpretation of the Renting Homes (Wales) Act 2016 (specifically the obligation to provide an electrical condition report) and cases on the statutory right of pre-emption, assertion of a third party beneficial interest in mortgage possession proceedings and defining a transaction defrauding creditors.
This week's edition of Arbitration weekly highlights includes: coverage of arbitration-related decisions from England and the USA; updates from SIAC, HKIAC, AAA-ICDR, CIArb, WIPO, LCIA, Swiss Arbitrators Association and the Law Commission. All this, and more in our weekly highlights.
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