A bar to the enforcement of an otherwise enforceable contract as the courts cannot compel one party to complete an immoral or illegal act even if that act would not have been illegal at the time of contracting.
An agreement of mandate for the performance of an immoral or illegal act cannot be enforced, as no court will enforce an illegal contract or transaction or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction that is illegal. Illegality could be considered to be a frustrating event. A contract may be discharged on the happening of some event that renders the continuance of the contract unlawful. Typically, an event likely to render performance unlawful would be the outbreak of war or hostilities where legislation prohibits dealings in affected countries or involving property of the enemy.
When is a contract a void contract?A void contract is one that is wholly lacking in legal effect. A contract will be void where:•the parties contract on the basis of a fundamental common mistake•one party contracts on mistaken terms and the other party knows of the mistake•one party is mistaken as to the other party’s identity•a party executes a document under a fundamental misapprehension as to its nature (non est factum)•a statute provides for a contract to be avoidedDistinguishing between contracts which are void, voidable or unenforceableA contract that is void must be distinguished from one that is merely voidable and one that is unenforceable.The distinction between a void contract and a voidable contract is especially significant in the context of third party rights. A third party will not be able to acquire rights under a void contract. However, where a contract is merely voidable and the person entitled to avoid the contract has not exercised their right to do so, the third party will acquire rights.Void contractTo speak of a void contract is a contradiction in terms because if a contract is truly void it is not a contract at all.A contract that is void produces no legal relationship between the parties. The contract is said to be void ab initio, meaning any payments made or property transferred
Challenging decisions of the UK communications regulator This Practice Note considers appeals against decisions made by the communications regulator in the UK, Ofcom. In this context, it takes account of relevant UK law, considers the establishment and functions of Ofcom and the ways in which Ofcom’s regulatory decisions may be challenged at the Competition Appeal Tribunal (CAT) (and subsequently the Court of Appeal), and/or the High Court. Applicable legislation The UK legislation is based on the EU regulatory framework on electronic communications (the Framework), which was originally established in 2002 with the aim of strengthening competition by facilitating market entry and stimulating investment in the electronic communications sector. The Framework consisted of a number of directives, the primary one being Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (the Framework Directive). This was supported by Directive 2002/20/EC (the Authorisation Directive), Directive 2002/19/EC (the Access Directive), Directive 2002/22/EC (the Universal Services Directive) and Directive 2002/58/EC (the ePrivacy Directive). In 2009, these directives were amended by Directive 2009/140/EC (the Better Regulation Directive) and Directive 2009/136/EC (the Citizens’ Rights Directive). The Framework Directive was designed to deal with divergences between Member States and aimed to establish a harmonised framework for the regulation of electronic communications networks and services. Key aspects of the Framework Directive for the purposes of this Practice Note are: • it established rules that govern
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Short-form facility agreement (term loan): single company borrower—bilateral—unsecured Facility agreement This Agreement is made on [date] Parties 1 [insert name of Borrower], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address] (the Borrower); and 2 [insert name of Lender], of [insert address] (the Lender). It is agreed as follows: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Business Day • means a day, other than a Saturday, Sunday or public holiday, on which banks are open for business in London; Commitment • means £[•] ([•] Sterling) minus any amount reduced or cancelled in accordance with this Agreement; Commitment Period • means the period commencing on the date of this Agreement to and including [•]; Default • means an event that with the giving of notice, lapse of time or other applicable condition would be an Event of Default under Clause 16; Drawdown • means [the OR a] utilisation of the Facility; Drawdown Date • means the date of Drawdown as specified in the [applicable] Drawdown Notice; Drawdown Notice • means an irrevocable written notice of each intended Drawdown in a form acceptable to the Lender; Event of Default • has the meaning given to it in Clause 16 (Events of Default); Facility • means the Sterling term loan facility made available under this Agreement in an amount equal to the Commitment; Facility Period • means the period from the date of this Agreement until all
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 Schedule
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What are the implications for an insured who participates in clinical trials but fails to notify his insurers of any existing health conditions or potential changes to his health which he discovers as a result? The following questions potentially arise: • has there been an increase in risk which the insured is obliged to disclose during the currency of the policy? • must the information be disclosed at renewal? • does it attract the operation of an exclusion for pre-existing conditions? • has there been any non-disclosure or misrepresentation? The insured’s state of health may be relevant to a wide variety of insurance policies, including long-term policies (eg life assurance, income protection or critical illness) and short-term policies (eg private medical, accident, or travel insurance). Some policies may be fully underwritten at the outset by means of a detailed proposal form. Others may only require minimal disclosure at inception but exclude cover for pre-existing medical conditions and/or require notification of changes in the insured’s health. It is therefore difficult to articulate general rules which are universally applicable and the detailed terms of cover must be checked carefully in every case. Obligation to disclose during currency of policy In most long-term contracts, the policy is fully underwritten at the outset and the insurer has the opportunity to conduct a full investigation of the insured’s health for itself. In agreeing to provide cover, it assumes the
Do you have any guidance for the employer of an employee who is an EEA citizen, employed in the UK, who is refusing to apply for the EU settlement scheme by 30 June 2021, despite being entitled to it, and the effect on the UK employment contract? Right to work checks A correctly conducted right to work check can provide an employer with a statutory excuse against a civil penalty for employing a person illegally, should it be that the employee in question does not have, or loses, the right to work at some point during the employment. To obtain the excuse, the employer must show that it has taken particular steps during the right to work check. Whatever the circumstances of the worker’s illegality a valid right to work check will, with one important exception, act as a statutory excuse for the employer against a civil penalty. The sole exception to this is where the employer has had knowledge ‘at any time during the period of employment’ that the employment was unlawful. The use of the phrase ‘at any time’ suggests that knowledge of illegality does not have to be concurrent with the period of illegality. Knowledge of illegality, or having reasonable cause to believe that a person does not have the right to work, also gives rise to the separate criminal offence of employing a person illegally. For
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Public Law analysis: The government has now published its Procurement Bill (the Bill) which when enacted will provide a new public procurement regime repealing the Regulations that currently govern public procurements (Public Contracts, Utilities, Defence and Public Security and Concessions). The introduction of the Bill to Parliament follows on from a detailed consultation process on reforming the UK’s procurement regime after Brexit. In this analysis, Jeremy Sharman and Russell Williamson of Bird & Bird LLP examine the key points of the Bill.
Restructuring & Insolvency analysis: The judgment of Insolvency and Companies Court (ICC) Judge Mullen in Re Mobigo Ltd deals with an unsuccessful attempt to strike out an application for misfeasance brought by one of the joint liquidators of Mobigo Ltd. Written by Edward Saunders, partner, and Stephen Baister, consultant, at Wedlake Bell LLP.
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