GLOSSARY
Goods definition
What does Goods mean?
Goods is generally understood to include most tangible moveable items, but intangible items such as software may be captured depending upon the legislation applicable and the context in which the term is used.
Commercial
Goods denote personal chattel and other property which may be detached from land.
Under the Sale of Goods Act 1979, goods mean: (1) all personal chattels other than things in action and money, (2) emblements, crops, items attached to land that are detached from land prior to sale; (3) an undivided share in goods. Goods includes an enormous range of items or products, including ships, computer disks (but not computer programs) and containers, packaging and any instructions supplied as well as the goods themselves.
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Contracts for the sale and supply of goods—business to business
This Practice Note provides an overview of the law and practice relating to contracts for the sale and supply of goods. It reviews the key legislative provisions of the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982, and also considers how the Bribery Act 2010, Modern Slavery Act 2015, Criminal Finances Act 2017 and Corporate Insolvency and Governance Act 2020 impact considerations when contracting for the sale and supply of goods. The Practice Note also considers the use of standard terms and conditions versus bespoke agreements when documenting supply of goods transactions, and the key terms in contracts for the supply of goods, including provisions to address the legislation referred to above and also the specification of goods, price and payment, delivery, acceptance, title and risk, retention of title, most favoured customer/supplier provisions, warranties and limitation of liability clauses. The Practice Note considers business to business (B2B) supply of goods contracts only.The supply of goods to consumers is significantly regulated and is not covered by this Practice Note. For guidance on business to consumer (B2C) contracts for the supply of goods, see Consumer protection contractual relationships—overview.Legislative and regulatory considerationsThe key statutes to
Key terms and conditions in contracts
This Practice Note considers the key terms and conditions (or T&C, Ts&Cs or T&Cs) in contracts for business-to-business (B2B) transactions. It sets out the general drafting considerations for contracts. It also looks at the key operative clauses in contracts such as price and payment, duration, termination, liability, warranties and indemnities and boilerplate.See also Practice Notes: Defining terms—The definitions and interpretation clause and Structure and form of commercial contracts.General drafting considerationsOne of the first issues to consider when putting in place a contract, is to ensure that there is a valid contract which is capable of being enforced. A contract should always satisfy the basic criteria for contract formation, ie it must comprise offer, acceptance and consideration and be executed by parties with the requisite capacity and authority to enter into the transaction. For more detail, see: Formation and interpretation—overview.It is also fundamental that the written terms clearly and accurately set out the key elements of the contract and address all the material parts of the transaction. When advising a client or drafting a contract:•state obligations expressly•where possible, avoid terms such as 'best or reasonable endeavours', 'material breach' or 'all necessary care or skill' or define them clearly. It is preferable to specifically outline the scope of a term so that all
The EU Consumer Rights Directive
This Practice Note provides an overview of Directive 2011/83/EU (OJ L 304/64), the EU Consumer Rights Directive (EU CRD), including the amendments introduced by Directive (EU) 2019/2161 (OJ L 328/7), the EU Omnibus Directive. It explains the scope of the EU CRD, key definitions including the differences between distance, off-premises and other contracts, what information must be provided to the consumer, and the consumer’s cancellation rights.It also considers the rules on additional payments, payment surcharges, help-lines, and delivery and passing of risk, as well as the impact of the EU CRD on UK legislation and upcoming developments. On 17 December 2021, the European Commission issued updated guidance on the EU CRD (EU CRD Guidance) to take account of the changes made by Directive (EU) 2019/2161 (OJ L 328/7), the EU Omnibus Directive, among other things, which may assist lawyers advising clients on the EU CRD. The EU CRD Guidance replaces the DG Justice Guidance concerning Directive 2011/83/EU, which was published in June 2014.Upcoming changesIn April 2018, the European Commission announced the ‘New Deal for Consumers’ package, which intends to strengthen consumer protection and enforcement. The New Deal includes two proposed Directives.Directive (EU) 2019/2161 (OJ L 328/7) on the better enforcement and modernisation of EU consumer protection rules, the EU Omnibus Directive, covers
Implied terms in contracts for goods and services
Express and implied contractual terms distinguishedContractual terms may be either express or implied:•express terms—are terms which are actually recorded in a written contract or openly expressed in an oral contract at the time the contract is made (or there may be a combination of written and oral express terms)•implied terms—are not stated in the contract but arise 'by implication' to reflect the intention of the parties at the time the contract was made. Terms may be implied by fact, law or custom. For guidance on implying terms into contracts, see Practice Notes:◦Contract interpretation—terms implied by law◦Contract interpretation—terms implied by fact◦Contract interpretation—terms implied by custom and usageThis Practice Note considers statutory implied terms in contracts for the supply of goods and services, being the terms incorporated by the Sale of Goods Act 1979 (SGA 1979) and the Supply of Goods and Services Act 1982 (SGSA 1982). It considers what the implied conditions and the implied warranties under the SGA 1979 and SGSA 1982 are and whether it is possible to exclude or modify these implied terms by express provision in the contract for goods or services.This Practice Note considers implied terms in business to business
Sponsorship
Sponsorship This Practice Note provides an overview of the key elements of a sponsorship deal, including establishing a sponsorship hierarchy for multiple sponsors, exclusivity arrangements, standard and additional rights commonly found in a sponsorship deal, fees and payment by value-in-kind, protection of sponsorship as well as compliance and regulatory issues. Brands are increasingly looking to align themselves with events or content that consumers care about. For this reason, sponsors are increasingly aligning themselves with areas outside of the traditional sports sponsorship model. For example, there has been significant growth in sponsorship of music events and artists, sectors that brands traditionally shied away from due to the myriad of rights owners. English law does not recognise the existence of proprietary rights in a sports (or other) event. It follows that there is no such recognised right as ‘sponsorship rights’ to an event, team or league. The sponsorship rights granted by rights holders to brands do not exist in and of themselves, rather they are created, exploited and protected via a contractual and legal matrix. Types of sponsorship There are many different types of sponsorship opportunities available, including sponsoring: • a team • an individual • an event, or series of events • a venue • content (such as a television programme) Key components of a sponsorship deal Sponsorship hierarchy Sponsorship programmes have developed to form a hierarchical model with the sponsors at the top granted the widest suite
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain This Practice Note looks at the eligibility requirements in relation to money and investments that will be relevant for a Tier 1 (Investor) migrant applying for indefinite leave to remain, where their last leave was granted under the pre-6 November 2014 Immigration Rules covering the category and they are applying before 6 April 2022. This includes what investments will qualify (including relevant restrictions), how the qualifying investments should be maintained, and the evidence needed to show that the qualifying investments and, if relevant, any balancing funds have been maintained over the relevant specified continuous period. It should be read in conjunction with Practice Note: Tier 1 (Investor): applying for indefinite leave to remain. The same requirements will apply where an applicant in this situation misses the 6 April 2022 deadline. As this route was closed to any further initial applications on 17 February 2022, through Statement of Changes in Immigration Rules CP 632, in part due to the concerns the route facilitated the transfer of illicitly obtained wealth, extension and settlement applications may face increasingly high levels of scrutiny. For further information, see: LNB News 17/02/2022 76. Investment within three months of the specified date If a person wishes to rely upon the date of first entry after being granted entry clearance,
Brussels I (recast)—requirements for an effective choice of court agreement (art 25)
Brussels I (recast)—requirements for an effective choice of court agreement (art 25) This Practice Note considers Article 25 of Regulation (EU) 1215/2012, Brussels I (recast) and the requirements that need to be met to show the court there is an effective choice of court agreement between the parties. It provides background information as to the position already adopted by the European Court on such agreements and what changes have been brought into place under Regulation (EU) 1215/2012, Brussels I (recast) and what that might mean in practice. Equivalent wording to Article 25 of Regulation (EU) 1215/2012, Brussels I (recast) was found in its predecessors being Article 17 of the Brussels Convention and Article 23 of Regulation (EC) 44/2001, Brussels I. Cases referenced in this Practice Note include those decided under the convention and regulation as they are relevant to understanding the key principles under Article 25. For general information in relation to choice of court agreements, see Practice Note: Brussels I (recast)—choice of court agreements (art 25). For guidance on the various other jurisdictional regimes that contain provisions regarding jurisdiction agreements, see Practice Notes: • Jurisdiction agreements—introduction • Hague Convention on Choice of Court Agreements—scope • Hague Convention on Choice of Court Agreements—jurisdiction • Jurisdiction agreements—approach of the courts of England and Wales Impact of UK’s departure from the EU Following exit day (ie 31 January 2020), the UK became a third state in
An introduction to the World Trade Organization
An introduction to the World Trade Organization What is the World Trade Organization? The World Trade Organization (WTO) provides the institutional and legal framework for trade between Member States. As such it administers the agreements agreed by Member States of the WTO. In addition, it also settles disputes among Member States, monitors Member States’ compliance with the various agreements and functions as a negotiating forum for all manner of trade related issues. The WTO had its inception on 1 January 1995, but its history dates to 1948 when, the General agreement on Tariffs and Trade of 1947 (GATT 1947) was agreed. Over numerous subsequent rounds of negotiations, in 1994, Member States agreed, in Marrakesh, to the Marrakesh Agreement Establishing the World Trade Organization (Marrakesh Agreement). The Marrakesh Agreement established the WTO and provides the institutional and legal framework for the multilateral trading system. There are also four annexes to the Marrakesh Agreement which are complemented by certain decisions and declarations. In total the legal texts consist of over 60 agreements, annexes, decisions, declarations and understandings. Annex 1 to the Marrakesh Agreement is arguably the most important of the annexes since it contains all the current multilateral agreements regulating different aspects of trade. There are three annexes dealing with: • trade in goods (Annex 1a) • trade in services (Annex 1b), and • trade-related aspects of intellectual property rights (Annex 1c) Each of these
A guide to leadership for in-house counsel—Part 1: Different approaches to leadership
A guide to leadership for in-house counsel—Part 1: Different approaches to leadership This guide This guide has been written to address the practicalities of leadership. If you find yourself in a leadership role for the first time, this guide contains some helpful ideas that will get you started. If you are an experienced leader, you will benefit from some fresh perspectives. The ideas in this guide reflect a pragmatic view of leadership and the development of leaders, focusing on the real problems and opportunities that they face. Leadership in the hot seat Most experienced leaders will say their role is difficult and complex and look cynically at those books providing the five, seven or ten things that make great leaders. After all, if successful they would have produced a lot of great leaders, but they haven’t. This guide aims to help you consider your own unique leadership context in which you work and the kind of leadership that you might be called on to deliver. In-house counsel are faced with particular leadership challenges. They must move away from tried and trusted 'business as usual' methods in the face of a changing landscape: they need to be clear on their contribution in a changing world and to be able to communicate this sense of direction; they need to work at building loyalty and commitment in others, deliver the goods
Real estate—United Kingdom - England & Wales—Q&A guide
Real estate—United Kingdom - England & Wales—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to real estate in United Kingdom - England & Wales published as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Fried Frank Harris Shriver & Jacobson LLP—Patrick Williams; Jons F. Lehmann; Devina Rana 1. How would you explain your jurisdiction’s legal system to an investor? England and Wales have a common law legal system. Investing in England and Wales is highly favoured given its system of compulsory land registration and just legal system. The laws governing real estate are predominantly statute based, and these are constantly developed through case law. International law is relevant to a limited extent (eg, matters concerning merger control are dealt with by international treaties that the United Kingdom is a part of). It is unclear how Brexit will impact this. In England and Wales, land contracts need to be in writing, to incorporate all relevant terms of sale, and to be signed by both seller and buyer. Oral contracts for the sale of land are usually unenforceable. Contracts for land are 'exchanged', with the legal transfer of ownership taking place on completion of either a deed of transfer or grant of a lease. 2. Does your jurisdiction have a system for registration or recording of ownership, leasehold and security interests in real
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Enterprise management incentives (EMI) qualification questionnaire
Enterprise management incentives (EMI) qualification questionnaire Enterprise management incentives suitability questionnaire in respect of [insert name of company] (the Company) The Company Purpose of granting the options Question Response 1 It is a requirement that the EMI options are granted for commercial reasons in order to recruit or retain an employee in a company, and not as part of a scheme or arrangement the main purpose (or one of the main purposes) of which is the avoidance of tax.Please confirm that whether this is the case. See drafting note The Company’s independence Question Response 2 Is the Company a 51% subsidiary of another company (ie does another company hold more than 50% of the ordinary share capital of the Company)? See drafting note Question Response 3 Is the Company in any way under the control of another company or another company and person(s) ‘connected’ with that other company (ie does another company, or another company and persons connected with that other company, have the power to ensure that the Company’s affairs are conducted in accordance with its wishes)?‘Connected’ for these purposes has a wide meaning and encompasses interests held by a spouse, relative, settled trust etc.Please provide details on the Company’s current shareholders and any expected future changes in its shareholding. See drafting note
Systems integration agreement—pro-supplier
Systems integration agreement—pro-supplier This AgrEement is made on [date] Parties 1 [insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer) (each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties). Background (A) The Customer wishes to procure software, [hardware], software configuration and development services, installation services and other related services. (B) The Customer has agreed to procure the Services from the Supplier and the Supplier has agreed to provide the Services to the Customer on the terms and conditions of this Agreement. The parties agree as follows: 1 Definitions and Interpretation 1.1 In this Agreement the following terms have the following meanings: Acceptance • means that: (a) the Customer confirms in writing that the Software has passed or is deemed to have passed the relevant Software Acceptance Tests; and/or (b) the Supplier confirms in writing that the Supplied Hardware has passed or is deemed to have passed the relevant Hardware Acceptance Tests, as the context so requires, and Accept shall be construed accordingly; Acceptance Criteria • means the criteria to be satisfied to demonstrate that: (a) the Software Acceptance Tests have been successfully completed as determined pursuant to
Software support agreement—pro-customer
Software support agreement—pro-customer This Agreement is made on [date] Parties 1 [Insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [Insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer), each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties. Background (A) The Supplier is [the licensor of certain software applications]. (B) The Customer is [insert details of Customer’s background/background to the relevant transaction]. (C) The Supplier has granted a licence to the Customer[, members of its group] [and certain authorised third parties] to use certain software applications and agrees to provide support and maintenance services for such software on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Authorised Third Parties • means any third party (including agents and contractors) engaged to provide services to the Customer or to any Customer Affiliate including any supplier to whom the Customer or any Customer Affiliate has outsourced any part of its business; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Commencement Date • means the date of this Agreement; Confidential Information • means any and all confidential information (whether in oral, written or
MVNO agreement
MVNO agreement This Agreement is made on [insert date] Parties 1 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (MVNO) (each of the Supplier and the MVNO being a party and together the Supplier and the MVNO are the parties). Background (A) The Supplier is a mobile network operator in the Territory. (B) The MVNO is a mobile virtual network operator in the Territory. (C) The Supplier has agreed to provide wholesale mobile electronic communications services to the MVNO for resale [on a pre-pay basis OR on a post-pay basis OR on a pre-pay and post-pay basis] in the Territory in accordance with the terms and conditions of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Account Manager • means the primary point of contact for each party as notified by each party to the other on or before the date of this Agreement (or in accordance with clause 20.3); Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Charges • means any amounts that have been paid
Sales and marketing agency agreement for services—exclusive—pro-principal
Sales and marketing agency agreement for services—exclusive—pro-principal This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal supplies the Services (as defined below). (B) The Principal wishes to appoint the Agent as its exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Services on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Services in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with their terms; Bribery Laws • means the Bribery Act 2010 [and associated guidance published by the Secretary of State
Green supplier agreement terms clause (The Chancery Lane Project)
Green supplier agreement terms clause (The Chancery Lane Project) Additional definitions Carbon Footprint Standards • means, for Organisational Carbon Footprints and Supply Chain Carbon Footprints, the [eg GHG Protocol Corporate Accounting and Reporting Standard, GHG Protocol Corporate Value Chain (Scope 3) Accounting and Reporting Standard, ISO 14064] and for Product Carbon Footprints, the [eg GHG Protocol Product Life Cycle Accounting and Reporting Standard, ISO 14064]; GHG Emissions • means [the parties’] emissions of the GHGs from all sources [related to the agreement] categorised as Scope 1, 2 and 3 Emissions by The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated from time to time; GHG Report • means a report prepared by the Supplier in accordance with the requirements set out in clause 4; Greenhouse Gases (GHGs) • means the natural and anthropogenic gases which trap thermal radiation in the Earth’s atmosphere as specified in Annex A to the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC)[ or otherwise specified by the UNFCCC at the date of this agreement], as may be amended from time to time[ which include carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulphur hexafluoride (SF6), and nitrogen trifluoride (NF3)] each expressed as a total in units of CO2e; Product Carbon Footprint • means total GHG Emissions over the whole life of the Supplied Products, from the extraction
Impromptu contract audit meeting questions
Impromptu contract audit meeting questions 1 Goods/services What types of goods and services are procured in your area/department? Where can I get a list? 2 Contracting process What contracting process is used? Where can I get a contracting process workflow diagram? 3 Roles and responsibilities Who does what in your area/department in the contract lifecycle process? Where can I get a roles and responsibilities workflow diagram? 4 Use of processes Does your area/department use the
Legal due diligence questionnaire—private M&A—share purchase
Legal diligence'>due diligence questionnaire—private M&A—share purchase Dated [insert date] Introduction This legal due diligence questionnaire relates to the proposed purchase by [insert buyer name] (the Buyer) of the entire issued share capital of [insert name of target company] Limited incorporated in England and Wales under number [insert company number] (the Company) from [insert seller name] (the Seller) (the Proposed Acquisition). This questionnaire is designed to enable the Buyer, the Buyer's solicitors and other professional advisers involved in the Proposed Acquisition to obtain the information which the Buyer requires to assist in its valuation of the Company. Please answer every question fully. Please provide your answers in italics underneath each question and provide copies of all relevant documentation, ensuring that all answers and documents are clearly marked by reference to the appropriate paragraph of this questionnaire. We reserve the right to raise further enquiries in respect of both your responses to this questionnaire and generally. Definitions Business • means the business of [insert description of the business] and all other activities including those ancillary or incidental to or in connection with such business as carried on by the [Company OR Group] CA 2006 • means the Companies Act 2006; Contractor • means any individual working in a Group Company’s business who is not an Employee or Worker; Data Protection Laws • means as applicable and binding on the Company: (a) Directive 95/46/EC; (b) the Data Protection Act 1998; (c) Directive
New to role—in-house lawyers—question plan—HR Director
New to role—in-house lawyers—question plan—HR Director Preliminary issues—introductions You should start the meeting with a short introduction to you, eg who you are, your previous experience, why you have joined this organisation. Question plan The answers to the questions below will help you gather together the key information that you need to underpin your role. You will also start to discover the areas of legal risk within the organisation. Agenda item Questions Comment/action Structure and reporting How is the HR department structured? Ask for a structure chart.What changes has the director made to the department over the past year and is any change or restructuring anticipated in the next six months?What and where are the key sites? Ask to visit them.Is any part of the function outsourced? Ask for the original signed contract.What reports is the director required to provide and how often: board/CEO? Is any information required from you to help the director compile those reports? [Insert comment or action] Key contracts What are the ten most important contracts for HR?Why are they considered key?What process was followed to select the suppliers of these key goods/services? Ask for original contracts.Who manages these
Executive service agreement
Executive service agreement This Agreement is made on [date] Parties 1 [Name of company], a company incorporated in England with registered number [number] whose registered office is at [address] (the Company); and 2 [Name of employee], of [address] (you). The parties agree: 1 Definitions and interpretation 1.1 In this Agreement the following expressions will, unless the context otherwise requires, have the meanings set opposite them: Basic Salary • the meaning given to it in Clause 8.1; [Board • [the directors of the Company present at a meeting (i) of directors of the Company or (ii) of a duly appointed committee of directors of the Company[, such meeting to be convened and quorate in accordance with the articles of association of the Company and the Companies Act 2006] OR the directors of the Company present at a meeting of directors of the Company[, such meeting to be convened and quorate in accordance with the articles of association of the Company and the Companies Act 2006] ];] [Chief Executive • the [chief executive] of [the Company OR [insert name of Group Company]] as appointed by the [Board OR Group Board] from time to time;] Commencement Date • [[date] OR the date specified in Clause 3.1] (notwithstanding the date of execution of this Agreement); Competing Business • the meaning given to it in Clause 27.6; Confidential Information • the meaning given to it in Clause 18.1; [Control • the meaning set out in section 995 of
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What permits and consents are required to put an existing gas holder back in use?
What permits and consents are required to put an existing gas holder back in use? This Q&A refers to a large above ground container in which gas is stored. Permits and consents to store gas Hazardous substances consent Owners and operators wishing to hold stocks of specified hazardous chemicals and similar substances on, over or under land above a threshold quantity must obtain a hazardous substance consent from the relevant hazardous substances authority. Hazardous substances consents are regulated by the Planning (Hazardous Substances) Act 1990 and in England by the Planning (Hazardous Substances) Regulations 2015 (PHSR 2015), SI 2015/627. The hazardous substances subject to control are set out in PHSR 2015, SI 2015/627, Sch 1 and include natural gas. Consent is required if the specified substance is stored or used at or above the specified controlled quantity set out in PHSR 2015, SI 2015/627, Sch 1. See Practice Notes: Hazardous substance zones and consent and Hazardous substances and planning for more detail around hazardous substance consents. Other planning requirements It is important to note that where development associated with the storage or use of hazardous substances is proposed, a separate planning permission may also be necessary, in addition to any requirement for hazardous substance consent. Assuming no operational development (ie building, engineering or other operations) are needed on site, planning permission is likely to nevertheless be required for the change
Do you include the VAT element in a debt claim when issuing the letter of claim and claim form?
Do you include the VAT element in a debt claim when issuing the letter of claim and claim form? This Q&A considers the scenario where A has a claim against B which is a debt claim for the payment for good/services supplied by A to B and where those goods/services attract VAT: • should A include the VAT in their letter of claim and/or claim form when seeking payment of the debt from B? • does it make any difference to the above if only either A or B is VAT registered (as opposed to both being VAT registered)? • if the VAT element should be claimed, should the ‘statement of value’ required in the claim form be expressed net or inclusive of VAT (bearing in mind that this will affect the issue fee payable)? • is the position different if the claim is for damages, rather than a debt? See: VAT basic principles—overview for general information on the function and operation of VAT. Where the claimant is a creditor and
If an employee commits fraud and/or acts in a deceitful manner, is the employer vicariously liable? Can a third party bring a claim directly against the employee?
If an employee commits fraud and/or acts in a deceitful manner, is the employer vicariously liable? Can a third party bring a claim directly against the employee? When it comes to the question of who is liable in tort for the fraudulent/dishonest acts of an employee (and assuming that, aside from any potential criminal liability, the employee has been guilty of a tort towards the person injured), the employee as tortfeasor will be liable, and the employer may also be liable if it can be established that the employee, in committing the tort, acted within the scope of their authority or employment. Where a tort has been committed—employee liability As a general rule, an employee who commits a tort is liable in damages to the person injured, and his liability is not affected by the existence of a contract of employment or, where he commits the tort in the course of his employment and within the scope of his authority, by the existence of the corresponding liability of his employer for the same tort, since the employee is the actual tortfeasor. For further information, see: Commission of a tort by the employee: Halsbury’s Laws of England [354–358]. Where a tort has been committed—employer liability As a matter of law, an employer whose employee has committed a tort may be vicariously liable for the tortious acts of their employee if the
Can an executor complete a new lease or if not, enter into a valid agreement for a new lease before a grant of probate?
Can an executor complete a new lease or if not, enter into a valid agreement for a new lease before a grant of probate? The duties and powers of personal representatives The duty of personal representatives is to collect and get in the real and personal estate of the deceased and administer it according to law: section 25 of the Administration of Estates Act 1925 (AEA 1925). For these purposes, they have a wide variety of powers enabling them to manage, sell, distribute and otherwise deal with the property of the deceased. See AEA 1925 and generally: Personal representatives—overview. Also, see Practice Note: Executor's and administrator's authority prior to the grant. The authority of personal representatives The executor’s title and authority derives from the Will. The property of the deceased vests in the named executor(s) at the date of the testator’s death. It is therefore from that moment that the above powers of the executor become exercisable. This is in contrast to the position of administrators when the deceased died intestate. The authority of the administrators only derives from the grant of letters of administration. Once the grant is issued, administrators have the same rights and liabilities, and are accountable in the
Which employees will transfer on a service provision change where the number of employees working on the relevant contract varies, due to the work being seasonal in nature?
Which employees will transfer on a service provision change where the number of employees working on the relevant contract varies, due to the work being seasonal in nature? In order for an insourcing to amount to a service provision change within the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, reg 3(1)(b), the following conditions must be satisfied: • (immediately before transfer) there must be an organised grouping of employees (which may be a single employee) situated in Great Britain • (immediately before transfer) the principal purpose of the organised grouping must be the carrying out of the activities on behalf of the client • (immediately before transfer) the client must intend the activities to be carried out by the transferee • the client must intend the activities not to relate to a single specific event or short-term task • the activities must not consist wholly or mainly of the supply of goods for the client's use For further information on service provision changes generally, see Practice Note: Service provision changes. Where there is a relevant transfer, subject to an employee's right to object to the transfer, the contracts of employment of those employees employed by the transferor and 'assigned to the organised grouping of resources or employees that is subject to the relevant transfer', and which would otherwise be terminated by the transfer, automatically transfer to the
An individual is employed by one group company (A) and works for another group company (B) and possibly other group companies, with Company B cross-charged for salary and other costs relating to the individual. If Company A is ‘demerged’ from the group, can the individual assert that their employment has transferred under TUPE 2006 to Company B?
An individual is employed by one group company (A) and works for another group company (B) and possibly other group companies, with Company B cross-charged for salary and other costs relating to the individual. If Company A is ‘demerged’ from the group, can the individual assert that their employment has transferred under TUPE 2006 to Company B? For information on demergers generally, see: Demergers—overview. You may wish to consider: • whether the proposed demerger amounts to a (a) business transfer or (b) service provision change (SPC) under the Transfer of Undertakings (Protection of Employment Regulations) 2006 (TUPE 2006), SI 2006/246 • if so, the effect of a relevant transfer under TUPE 2006, SI 2006/246 on employees of Company A (ie would the transfer have the effect of transferring those employees to Company B, which would depend on the nature of the transfer) • if the employee is unable to establish the desired right under TUPE 2006, SI 2006/246, whether it is possible for them to assert that they are in fact (and were pre-transfer) employed by Company B, despite, for example, having a contract of employment with Company A Is there a business transfer under TUPE 2006? A relevant transfer under TUPE 2006, SI 2006/246 may take the form of: • a business transfer • a service provision change A business transfer under TUPE 2006, SI 2006/246 occurs where there is: • a transfer of
What remedies are available to a buyer whose solicitors have breached their duty of care (negligence) and acted in breach of retainer in failing (i) to use the correct forms of Land Registry transfer (ii) to include necessary grants and reservations of rights and imposition of restrictive covenants with the result that the buyer (a) cannot register the transfer with the Land Registry and (b) in circumstances where the seller is refusing to enter into new and correct forms of transfer?
What remedies are available to a buyer whose solicitors have breached their duty of care (negligence) and acted in breach of retainer in failing (i) to use the correct forms of Land Registry transfer (ii) to include necessary grants and reservations of rights and imposition of restrictive covenants with the result that the buyer (a) cannot register the transfer with the Land Registry and (b) in circumstances where the seller is refusing to enter into new and correct forms of transfer? Basis of liability in professional negligence claims Our Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity provides a useful outline for the initial considerations in bringing a clam for negligence. There are three options for the basis of the claim: Liability in contract: In most cases, there will be a contract between the professional and the client, eg between a solicitor and his client. There may be express or implied terms as to the performance of obligations under the contract and there may be attempts to limit or exclude liability for inadequate performance. By virtue of section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982) most contracts for the provision of services made in the course of a business contain an implied term that the person providing that service will exercise reasonable care and skill. The
Are there any restrictions on the amount a contracting authority's may invoice (a management fee/charge) a supplier appointed to a framework for managing that framework?
Are there any restrictions on the amount a contracting authority's may invoice (a management fee/charge) a supplier appointed to a framework for managing that framework? Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, reg 33(2) defines a framework agreement as: ‘an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’ The Crown Commercial Service (CCS) guidance on framework agreements provides the following interpretation: ‘a framework agreement is a general phrase for agreements with providers that set out terms and conditions under which agreements for specific purchases (known as call-off contracts) can be made throughout the term of the agreement. In most cases a framework agreement will not itself commit either party to purchase or supply, but the procurement to establish a framework agreement is subject to the EU procurement rules.’ Further guidance on the use of framework agreements and the public procurement regime more generally is available in the following Practice Notes: • Introduction to public contracts
If the applicable law between parties to a sale of goods contract is disputed in a 'battle of the forms' scenario, will Rome I be used as fall-back position? Parties disputing applicable law is not quite the same as failing to choose applicable law - will these scenarios receive equivalent treatment?
If the applicable law between parties to a sale of goods contract is disputed in a 'battle of the forms' scenario, will Rome I be used as fall-back position? Parties disputing applicable law is not quite the same as failing to choose applicable law - will these scenarios receive equivalent treatment? Article 3 of Rome I Where parties have entered into a contract which contains an applicable law clause, the parties must have validly consented to that clause. Where a party has not they may dispute the existence or validity of that clause as provided for in Article 3(5) of Regulation (EC) 593/2008, Rome I. This article states that the existence and validity of an agreement is to be determined in accordance with Article 10 of Regulation (EC) 593/2008, Rome I, Article 11 of Regulation (EC) 593/2008, Rome I and Article 12 of Regulation (EC) 593/2008, Rome I. Article 10(1) of Regulation
There is a retention of title clause incorporated into a contract between a buyer and seller for the supply of goods. The buyer is now in liquidation. The buyer was previously making payment by installments and these part payments comprise approximately 50 per cent of the total sum due under the contract. If the liquidator returns the goods to the seller, does the seller need to refund the sum of the part payments to the buyer? Is the buyer entitled to reimbursement of the sums paid and, if so, what is the process?
There is a retention of title clause incorporated into a contract between a buyer and seller for the supply of goods. The buyer is now in liquidation. The buyer was previously making payment by installments and these part payments comprise approximately 50 per cent of the total sum due under the contract. If the liquidator returns the goods to the seller, does the seller need to refund the sum of the part payments to the buyer? Is the buyer entitled to reimbursement of the sums paid and, if so, what is the process? A retention of title (ROT) clause is a provision in a contract which allows the seller to retain title to goods which it has delivered to a buyer until the buyer has paid for them in full or, where permitted to do so, sold them on to a third party (see Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd). A retention of title clause is sometimes referred to as a reservation of title clause, ROT clause or Romalpa clause, after the case bearing that name. Its purpose is to protect the unpaid seller against the buyer’s insolvency, giving it priority over other creditors in respect of the goods concerned. ROT clauses can be simple where the seller retains title to the goods until the buyer pays the price of the goods,
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Immigration weekly highlights—30 June 2022
Welcome to the 30 June 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
Commercial weekly highlights—30 June 2022
This week's edition of Commercial weekly highlights includes: news of the Court of Appeal judgment in Credico Marketing Ltd v Lambert and others which allowed the appeal in part against the QBD court’s earlier decision that the restrictive covenants in the appellant’s trading agreement with the respondent marketing organisation were enforceable, analysis of the Commercial Court judgment in Gama Aviation (UK) Ltd v MWWMMWM Ltd which upheld the novation of the agreement between the parties, analysis of the Advocate General’s opinion in Rigall Arteria Management v Bank Handlowy w Warszawie concerning an agent’s entitlement to commission on repeat transactions, and analysis of the Commercial Court decision in AIG Europe SA v John Wood Group which upheld an exclusive jurisdiction clause in an insurance contract.
Environment weekly highlights—30 June 2022
This week's edition of Environment weekly highlights includes analysis on the challenge to Southampton airport expansion project being rejected. In addition, this week the Climate Change Committee published its 2022 progress report on emissions reduction to Parliament, an agreement has been reached on modernising the Energy Charter Treaty, the UK signed up to the Sustainable Productivity Growth Coalition, the Taskforce on Nature-related Finance Disclosures released version 2 of the beta framework for nature-related risk and opportunity management and disclosure, and the Committee on Transport and Tourism of the European Parliament adopted a draft negotiating mandate on the ReFuelEU aviation rules. We have also published a new Practice Note which details the key Environment resources available in Lexis®Library.
International Trade weekly highlights—30 June 2022
This week's edition of International Trade weekly highlights includes the WTO Secretariat setting the agenda for next meeting of the Dispute Settlement Body, DDG González calling on trade in services to build the WTO of tomorrow, Council of EU amending a regulation on opening and providing of autonomous tariff quotas for agricultural and industrial products and submitting proposals to amend appendices and include species to CITES. This week’s highlights also includes the TRA reviewing measures on two steel products, suspending an investigation on steel from Ukraine, initiating a new exporter review on electric bicycles from China, publishing a report on steel safeguard measures and reviewing of exceptions for developing countries. This week’s highlights also includes the UK launching free trade agreement negotiations with Gulf Cooperation Council, and the UK and India concluding the fourth round of FTA negotiations. This week’s highlights also includes the IAC publishing the fourth report scrutinising international treaties and the Trade Secretary proposing to extend steel safeguard tariff rate quota until 2024.
Employment weekly highlights—30 June 2022
This week's edition of Employment weekly highlights includes: (1) developments on industrial action law, comprising: (i) regulations increasing from 21 July 2022 the damages limits that may be awarded against a trade union in any proceedings in tort; (ii) draft regulations which will permit employment businesses to supply temporary workers to employers to perform the work normally carried out by workers on strike; and (iii) a legal opinion on the government’s involvement in rail dispute pay negotiations, (2) an analysis of the new Bill of Rights introduced by the Ministry of Justice, (3) a judgment from the EAT concerning state immunity from claims in the context of military bases in the UK that are run by a foreign state, (4) a report on the future of remote working from the Migration Policy Institute, (5) an analysis of an employment tribunal decision finding that an employee with long COVID symptoms was disabled for the purposes of the Equality Act 2010, (6) a new Retained EU law (REUL) dashboard published by the Cabinet Office, (7) an Equality Impact Assessment (EIA) from the Home Office on digital-only right to work and rent checks, (8) updated Sponsor Guidance on Global Business Mobility (GBM) routes, (9) the launch of an inspection of the immigration system in relation to the agricultural sector, (10) the results of the 2019 Employers’ Pension Provision Survey published by the Department for Work and Pensions, (11) HM Treasury’s Women in Finance annual review, (12) dates for your diary, (13) updates to our case, consultation and legislation trackers, as well as to our Employment horizon scanner, and (14) new Q&As.
Public Law weekly highlights—30 June 2022
This week's edition of Public Law weekly highlights includes the latest updates on the conflict in Ukraine and the sanctions against the Russian state. Coronavirus (COVID-19) updates include the publication of the terms of reference for the public inquiry into the pandemic. Also featured are selected Brexit headlines, including analysis of the EU's launch of infringement proceedings against the UK over compliance with the Northern Ireland Protocol; the Cabinet Office's retained EU law (REUL) dashboard; updates on the second meetings of the Specialised Committees on Air Transport and Social Security Coordination; progress on the UK's international trade priorities, as well as the latest post-Brexit guidance, legislation and SIs. Also in this edition, analysis of the Bill of Rights Bill and the Procurement Bill; the Courts and Tribunals Judiciary's guidance on the use of the Administrative Court; the Cabinet Office's guidance on declaration and management of outside interests in the Civil Service, plus additional updates on constitutional and administrative law, judicial review, equality and human rights, public procurement, subsidy control and state aid. Case analysis this week includes the Administrative Court's ruling on the scope of rights protected under Article 8 of the European Convention on Human Rights (ECHR) in extradition proceedings.
Dispute Resolution weekly highlights—30 June 2022
This week's edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including the long awaited judgment in Osbourne v Persons Unknown (are NFTs property?) as well as that of the Court of Appeal in AIG Europe SA v John Wood (anti-suit injunctions to support contractual agreements); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.
Local Government weekly highlights—30 June 2022
This week's edition of Local Government weekly highlights includes case analysis of Piffs Elm Ltd v Commission for Local Administration in England confirming the LGO’s implied power to withdraw reports and Mayor and Burgesses of the Tower Hamlets LBC v Khan on recovery of contractual costs in relation to forfeiture clauses; plus analysis on the Bill of Rights Bill and the significant changes to the UK human rights framework, analyses on the Public Procurement Bill in relation to its impact on challenges and remedies for suppliers and public authorities and on contract change and analysis of the final version of the Department of Health and Social Care’s (DHSC) data strategy. The weekly highlights also includes further updates on the Ukraine conflict, governance, public procurement, local government finance, education, children’s social care, social care, healthcare, social housing, planning, highways and coronavirus (COVID-19).
EU Competition law—daily round-up (28/06/2022)
A round-up of EU competition law developments, including (amongst other things) latest Commission decision under the State Aid Temporary Framework for the coronavirus (COVID-19) pandemic.
The Northern Ireland Protocol–EU legal action against the UK
Public Law analysis: The EU has launched legal action against the UK, following the government’s publication of its Northern Ireland Protocol Bill on 13 June 2022. What happens next?
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