Commercial Contracts - Drafting Techniques and Precedents

3rd Edition

Publication Date	February 2001
Publisher	Thorogood Publishing
Product Type	Book
Pages	91
ISBN Number	9781854182715
Product Code	TGD00005

Commercial Contracts - Drafting Techniques and Precedents

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Summary

This report takes you through the drafting process, giving practical guidance from start to finish. With up-to-the-minute information on key cases and materials and in-depth analysis of the important drafting issues, it is a must for all those who need to draft commercial contracts.

This report has been fully updated and expanded to take account of new legislation and case law.When you sit down to draft a contract today you've got to be thinking of so many different issues.

For example, more cases are now being argued with reference to the Human Rights Act: how might your contract be interpreted in the light of it and what are the dangers of infringing it. The distinction between exclusions of liability and limits of liability can cause problems. As of course can the difference between best endeavours and reasonable endeavours.

For all points of the law and critical distinctions, you will find crystal-clear explanations and guidelines to a host of case studies illustrating the law and its application.

A practical guide to drafting commercial contracts

This report will help you to:

Ensure that you are fully aware of all changes to the law
Sharpen your commercial awareness
Improve your drafting skills
Increase your appreciation of the rules and guidelines set out by the courts
Help you better achieve your commercial objectives
Radically reduce your chances of making an expensive mistake

Content

Introduction
The Commercial and Legal Objectives
- Getting started: preliminary considerations
- Drafting precedents
- The wishes and needs of the client
- Four philosophies of drafting
- Case study: the need to draft terms that create
- mutual understanding and expectations
- Recti?cation
- Mutual understanding: plain intelligible language
- Obscure words
- The uses of formulae to clarify commercial objectives
Strategic Ends: Some Important Decisions to Be Made about The Terms of The Contract
- Time: is it to be or not to be of the essence?
- Positive obligations: ?rm undertakings or endeavours?
- What is the distinction between 'best endeavours'
- and 'reasonable endeavours'?
- Other cases distinguishing between reasonable
- endeavours and best endeavours
- Are there any problems in enforcing endeavours clauses?
- Third party rights: should these be permitted,
- restricted or excluded?
- Controlling assignment
- The creation of a trust of the bene?ts arising from a contract
- The Contracts (Rights of Third Parties) Act 1999
- Termination provisions: the choices to be made
- Clauses providing for termination for breach of
- contract: the attitude of the courts
- Material breach; substantial breach; repudiation
- The nature of the breach
- Material breach
- Termination in relation to other remedies
Structuring The Contract
- The title and the description of the parties
- The recitals
- Recitals and the matrix theory
- The terms of the contract
- The signature: simple contract or execution as a deed?
- Pre-contractual arrangements
- Post-contractual arrangements
- What is the effect of an 'entire agreement' clause?
- The Court of Appeal cases
- What is a framework agreement?
How to Manage The Risks
- Risks
- Insurance
- Indemnities
- Boilerplate clauses
- Exclusions and limits of liability
How The Courts Will Interpret What Is Written
- Ambiguities, absurdities and technicalities
- The contra proferentem rule
- The interpretation of indemnities
- 'Consequential' loss or damage
- The knock-on effect of amendments
Control by The Courts:
Valid and Invalid Terms
- The rule against penalties
- Unfair terms: some common law principles
- Unfair terms: the scope of the Unfair Contract Terms Act 1977
- Unfair terms: some cases on the test of reasonableness
- Unfair terms in consumer contracts
- Other tests of validity under statute
- The Human Rights Act 1998
Appendices
- Appendix
- List of cases cited
- Appendix
- List of statutes and other enactments mentioned in the text