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Leasing or buying from a heritable creditor in possession (Scotland)—checklist Title When taking a lease or buying from a heritable creditor in possession, the title deeds should include: • the original or a certified copy of standard security under which the heritable creditor purports to have title • evidence that the power to enforce the standard security has arisen (ie a default has occurred and calling up procedures have been followed), see Practice Note: Enforcing standard security—Scotland The standard security will be registered against the title to the property, but you should also check that it: • has been registered at Companies House • has been properly executed, see Practice Note: Execution of documents under Scots law and Registers of Scotland—guidance on execution of documents in counterpart • contains provision to allow the heritable creditor to call up and sell or lease Most standard securities will contain an express power to enforce on the occurrence of specified events of default, but if this is not the case, a power to...
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....
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Penalty interest rates in commercial contracts Introduction This Practice Note discusses the rule against penalties and how it applies to interest rates in commercial contracts, including a discussion of the late payment legislation in the UK. As part of the freedom of contract in business to business contracts, parties can prescribe the consequences of a breach of contract. Whether the courts will uphold those provisions in a given factual setting is a different matter. Where the parties choose to do so, those consequences are commonly an obligation to make a payment of an agreed sum. The sum may be a fixed amount or determined by reference to a formula. Penalty interest rates are an example of the latter. A drafter of a penalty interest rate clause must ensure that the clause complies with the doctrine of penalties, and, in the context of the supply of goods or services, the Late Payment of Commercial Debts (Interest) Act 1998 (LPCD(I)A 1998). It should also be considered whether an interest...
LCIA (2020)—emergency arbitrator and expedited tribunal This Practice Note concerns LCIA arbitration proceedings pursuant to the LCIA Arbitration Rules 2020 (the LCIA rules) effective from 1 October 2020. For practical guidance on arbitration pursuant to the LCIA Rules 2014 and 1998, the previous versions, please see the relevant Practice Notes here: LCIA arbitration—overview. Under the LCIA Rules, a party who requires urgent assistance prior to the formation of a tribunal can apply to the LCIA Court under LCIA, art 9 for one or both of: • expedited formation of the tribunal (LCIA, art 9A) • appointment of an emergency arbitrator (LCIA, art 9B) The LCIA has provided guidance on both procedures in its Notes on Emergency Procedures here. A party may also apply to a court for relief pending the appointment of a tribunal or, in certain circumstances, after its appointment. For emergency relief available from the English courts, see: • AA 1996—interim and emergency measures—arbitration—England and Wales—overview • AA 1996—interim and/or emergency relief—tribunal or court? • AA...
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Reliance agreement This Agreement is made on the [insert date] day of [insert month] 20[insert year] Parties 1 [insert name of party], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Consultant); and 2 [insert name of party], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Beneficiary). Background (A) The Consultant was engaged by [insert name] (Client) to carry out the Services at the Property and prepare the Report[s] (B) The Beneficiary is [insert beneficiary’s connection with the Property] and seeks to rely on the Report[s] The parties agree: 1 [insert details] 2 Definitions and interpretation 2.1 In this Agreement, unless otherwise provided: Report[s] • mean[s] [insert name of environmental report/s] [insert reference] prepared for [insert client name] [insert date] Property • means [insert address] Services • means [insert description of Consultant’s services] 2.2 References to the Consultant and the Beneficiary shall include their respective successors in title....
Licence to use photographs This Agreement is made on [insert date] (the Commencement Date) between the following parties (each a party and together the parties): Parties 1 [insert licensor name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (the ‘Licensor’); and 2 [insert licensee name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (the ‘Licensee’). Background (A) Licensor is the proprietor of the Photographic Works. (B) Licensor wishes to license the Photographic Works to Licensee and Licensee wishes to receive the same on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 Definitions In this Agreement: Affiliate • means any entity that directly or indirectly controls, is controlled by or is under common control with, another entity; Control • means that a person owns directly or indirectly more than 50% of...
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Should internal staffing costs be deemed indirect or direct losses? 'Direct loss' and 'indirect loss' 'Indirect loss' is most frequently considered in the context of assessing quantum of damages and in interpreting exemption clauses. The normal function of damages for breach of contract is compensatory but is limited by the principles of causation and remoteness. Damage which is too remote is not recoverable even if there is a causal link between the breach of contract and the loss. Hadley v Baxendale established the 'two limb test' for assessing whether damage resulting from a breach of contract is or is not too remote. Damages may only be recovered for: • losses arising naturally—the defaulting party is liable for any losses, which may fairly and reasonably can be considered as arising naturally from the breach of contract. The court will take into consideration the type of trade or transaction in question (direct loss), or • potentially foreseeable losses—those which were in the reasonable contemplation of the parties at...
Is it possible to novate one agreement into two separate agreements? If so, will this then duplicate terms, eg liability (if the original liability is £1m, will this then duplicate the exposure)? Can this be achieved without seeking express consent but instead notifying the parties through a communications notification piece and via conduct? This Q&A assumes that a commercial agreement between business entities is the subject of potential novation. Novation of one agreement into two agreements Novation occurs when A and B are party to an agreement and B 'transfers' its obligations and rights under the agreement to C, such that C can be said to 'step into the shoes' of B, with a resulting contractual relationship coming into effect between A and C. The effect of a novation is the extinction of the original contract, and its substitution with a new contract, under which the same rights and obligations are to be enjoyed and performed but by different parties, with the outgoing party released from all future ...
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This week's edition of Commercial weekly highlights includes: judgment of the Court of Appeal in KSY Juice Blends UK Ltd v Citrosuco where the court allowed the appeal, finding that the 2018 contract included an implied term that the price for 800MT of water extracted soluble orange solids would, in the absence of agreement, default to a reasonable or market price, news that the Data (Use and Access) Act 2025 came into force on 19 June 2025, and news that the Competition and Markets Authority has detailed its new enforcement powers under the Digital Markets, Competition and Consumer Act 2024 regarding dynamic pricing practices.
This week's edition of Commercial weekly highlights includes: commentary on the European Commission's finalisation of a Code of Practice for general-purpose AI model developers, despite possible delays of the EU AI Act that underpins it, news that the Data (Use and Access) Bill is set to receive Royal Assent and become an Act of Parliament on 19 June 2025, and news that the Department for Environment, Food and Rural Affairs published its consultation outcome regarding proposed reforms to food labelling requirements.
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