Commercial Contract Drafting Essentials - 6 Modules to Avoid Litigation

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.

What You Will Learn:

This webinar series will cover the following:

Module 1 - Battle of the Forms

Businesses regularly use standard terms and conditions as an alternative to creating a bespoke agreement. This often 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 successful incorporation of your terms and conditions?
• How can you 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?
• In what circumstances can the first shot win?
• What practical steps can be taken 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 does ‘liquidated damages’ mean in practice?
• Liquidated damages clauses v penalty clauses - what are the key differences?
• What tests will the courts apply?
• Which party has the burden of proof?
• What practical steps can be taken 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 is often 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?
• ‘Reasonable endeavours’ v ‘best endeavours’ - what are the key differences?
• What is meant by ‘all reasonable endeavours’ and when should this standard be used?
• How do the courts interpret ‘best efforts’ and ‘reasonable efforts’?
• What can be done to resolve deadlock between the parties over which standard to use?
• What practical steps can be taken 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 provisions of 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?
• What is the test of reasonableness and how is it applied by the courts?
• What practical steps can be taken 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:

• What types of losses should be excluded?
• What principles are used to resolve interpretation disputes?
• What is an appropriate limitation amount?
• What practical steps can be taken to limit risk?

Module 6 - Force Majeure Clauses

These clauses are often re-produced from one contract to another without a great deal of thought, but they can contain pitfalls for the unwary.

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

• Should ‘force majeure’ be defined narrowly or broadly?
• To what extent must there be a link between the force majeure event and a party’s inability to perform its obligations?
• Are the parties required to take steps to prevent and mitigate the force majeure event?
• Why should the parties include a notification requirement?
• Which party should be able to terminate and when?
• What practical steps can be taken to limit risk?

This pre-recorded webinar will be available to view from Monday 1st September 2025

Alternatively, you can gain access to this webinar and 1,800+ others via the MBL Webinar Subscription. Please email webinarsubscription@mblseminars.com for more details.