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Type Speaker CPD Hours Level
Webinar
3.5 IntermediateInformation
Accreditation Information
SRA Competency B

Introduction

This series of 7 online modules aims to tackle the most difficult and common problems that arise in relation to commercial contracts.

Module 1 - Battle of the Forms

Rather than insist on a bespoke document signed by both parties, many businesses prefer to contract on their standard terms and conditions and simply print them on the back of order forms or invoices or attach a pdf version to their to e-mails.

Often this can work well but problems arise when both parties try to do the same thing and a court has to decide which terms and conditions take priority.

This module will examine the key issues to be aware of and topics will include:

  • What is meant by the phrase ‘incorporation of terms’ and how can you make sure you do this successfully?
  • How do entire agreement clauses relate to this issue?
  • How does the ‘Battle of the Forms’ work?
  • Do the courts always decide these cases on the basis of ‘last shot’ wins?
  • What steps do you need to take practically to limit your risk?

Module 2 - Entire Agreement Clauses

Commonly found in the boilerplate section of any commercial contract, these clauses seek to avoid confusion about the scope of the contract between the parties. In particular, their function is to spell out that the contract is found in the pages of the most recent written agreement to the exclusion of previous documents or conversations.

To be at its most effective, this clause needs to contain certain key elements, and this module will summarise what they are and look at some of the pitfalls that exist.

This module will include:

  • Whole agreement principle
  • Non-reliance principle
  • Negligent v fraudulent misrepresentation
  • Compliance with the reasonableness test of the Unfair Contract Terms Act 1977
  • Suggested wording to be used

Module 3 - Liquidated Damages Clauses and Penalties Revisited

Many commercial contracts will contain liquidated damages clauses. However, it is important to draft these correctly, otherwise a court may rule that the clause is a penalty and is therefore unenforceable.

This module sets out an overview of the key issues to be borne in mind when drafting such a clause and will include:

  • What does ‘liquidated damages’ mean?
  • What is the distinction between a liquidated damages clause and a penalty clause?
  • What tests will the courts apply?
  • Who has the burden of proof?
  • What steps do you need to take practically to limit your risk?

Module 4 - Endeavours Clauses - Latest Developments

A regular feature in commercial contracts, endeavours clauses can still give rise to a certain amount of confusion in terms of precise meaning and also deciding which standard to use.

This module sets out a summary of the key considerations together with practical guidance as to how these clauses should be used.

The module will include:

  • When should endeavours clauses be used?
  • What is the difference between ‘best endeavours’ and ‘reasonable endeavours’?
  • What does ‘all reasonable endeavours’ mean?
  • How do you resolve conflict with the other party over which standard to use in a contract?
  • What steps do you need to take practically to limit your risk?

Module 5 - Exclusion and Limitation Clauses (1)

One of the most controversial issues in any commercial contract, exclusion and limitation clauses require a great deal of care and attention. Anyone drafting these clauses needs to strike the right balance between commercial reality and legal requirements and this is not an easy thing to do.

This module will set out a summary of the legal rules that govern this area of law and then seek to apply the law in a practical way using a series of examples based on recent decisions of the courts.

  • Brief overview of the rules set out in the Unfair Contract Terms Act 1977
  • Exclusions and limitations that are always unacceptable
  • Exclusions and limitations that are acceptable as long as they are reasonable
  • The test of reasonableness
  • Practical steps to take

Module 6 - Exclusion and Limitation Clauses (2)

Drafting exclusion and limitation clauses in any commercial contract requires a great deal of attention. The right balance between commercial reality and legal requirements needs to be considered when drafting these clauses.

This module will include:

  • Exclusions of implied terms
  • Resolving arguments about the correct interpretation of these clauses
  • Setting an appropriate limitation amount
  • How to draft these clauses in the most appropriate fashion
  • Practical steps to take

Module 7 - Force Majeure Clauses

Force majeure clauses often languish unnoticed in the boilerplate section of a contract until something goes wrong, at which point they are considered in minute detail in the hope of being relied upon.

Brexit and COVID-19 have brought this issue to prominence once again, and this session looks at the most important aspects of force majeure clauses.

This module will include:

  • Defining force majeure events - the less detail the better?
  • Prevention and mitigation obligations
  • Causation requirement
  • Suggested wording

This pre-recorded webinar will be streamed at 12:30pm on Tuesday 29th September 2020 and will remain available to view by delegates who have registered by then for 90 days.

New: Enjoy unlimited 24/7 access to over 785 webinars with an MBL Annual Webinar Subscription. Email webinarsubscription@mblseminars.com for details.

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Webinar | 29.09.2020

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Commercial Contracts - Drafting to Avoid Litigation - A Box Set of 7 Essential Modules

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