Commercial Contracts & Drafting to Avoid Litigation - A Box Set of 6 Essential Modules

Introduction

Thoroughly updated in the light of recent caselaw, this box set of six online modules aims to tackle the most difficult and common problems that arise in relation to commercial contracts.

Module 1 - Battle of the Forms

Standard terms and conditions are regularly used by businesses as an alternative to creating a bespoke agreement. Usually, this works well, but problems can arise when both parties adopt the same approach and a court has to decide whose terms and conditions take priority.

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

• How can you ensure that your terms have been incorporated successfully?
• What does it mean to take ‘reasonable steps’ to bring your terms to the other party’s attention?
• What are entire agreement clauses and how do they operate?
• How does the ‘Battle of the Forms’ work?
• First shot v last shot - which takes priority?
• How can you ensure that the first shot wins?
• What steps need to be taken practically to limit risk?

Module 2 - Liquidated Damages Clauses and Penalties Revisited

Liquidated damages clauses are a common sight in commercial contracts. However, they need to be drafted carefully otherwise a court may rule that the clause is a penalty and is therefore unenforceable.

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

• What is the meaning of ‘liquidated damages’?
• What are the differences between a liquidated damages clause and a penalty clause?
• What tests will be applied by the courts?
• Who has the burden of proof?
• What steps need to be taken practically to limit risk?

Module 3 - Endeavours Clauses - Latest Developments

Endeavours clauses are a useful way of framing the parties’ obligations under a contract. However, there can still be a certain amount of confusion in terms of their precise meaning when deciding which standard to use.

This module sets out a summary of the key considerations together with practical guidance and will include:

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

Module 4 - Exclusion and Limitation Clauses (1)

Exclusion and limitation clauses are a regular source of conflict during contract negotiations. 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 and will include:

• What are the key rules set out in the Unfair Contract Terms Act 1977?
• Which types of exclusion and limitation clauses are always unacceptable?
• Which types of exclusion and limitation clauses are acceptable as long as they are reasonable?
• What is the test of reasonableness and how is it applied by the courts?
• What steps need to be taken practically to limit risk?

Module 5 - Exclusion and Limitation Clauses (2)

This module builds on the knowledge obtained in module 4 and considers more complex issues that can arise when drafting exclusion and limitation clauses.

This module will include:

• How will arguments about the correct interpretation of clauses be resolved?
• What wording is required to exclude implied terms?
• What types of losses should be excluded?
• What is an appropriate limitation amount?
• What steps need to be taken practically to limit risk?

Module 6 - Force Majeure Clauses

The impact of COVID-19 has caused many organisations to re-visit their force majeure clauses. These clauses are often re-produced from one contract to another without a great deal of thought, but they contain pitfalls for the unwary.

This module examines the key considerations and sets out a series of practical steps to take and will include:

• How should ‘force majeure’ be defined?
• What is meant by the force majeure event being the ‘sole effective cause’ of a party’s inability to perform its obligations?
• Will the courts expect the parties to take reasonable steps to prevent and mitigate the force majeure event?
• Should a notification requirement be included?
• Who should be able to terminate and when?
• What steps need to be taken practically to limit risk?

This webinar was recorded on 12th January 2023