Q&As

Can the parties to a tripartite agreement agree that it may be varied by only two of them?

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Published on LexisPSL on 12/04/2018

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Can the parties to a tripartite agreement agree that it may be varied by only two of them?
  • Variation generally
  • Unilateral variation
  • Variation of third party guarantees
  • Rights of third parties

It has been assumed this Q&A refers to a business to business contract which is not subject to specific industry or sector regulation. Additional considerations may apply for a business to consumer contract.

Variation generally

Over the course of a commercial arrangement there will be occasions when a written contract needs to be varied or amended to reflect the changing needs of the parties or environment within which they are operating.

Where the original contract is in writing, it is common practice to include a term providing that any amendment or variation of that agreement is to be made in writing and signed by all parties or their authorised representatives. For an example, see Precedent: Variation clause. Some written contracts go further and provide that the parties must discuss and negotiate a proposed variation only within the confines of a prescribed process and in a pre-agreed format, for example, see clause 10 and Schedule 12 of Precedent: Outsourcing agreement—long form.

Any agreement to vary a contract is subject to general contract principles and needs to be supported by consideration. If an attempted contract variation fails due to a lack of consideration or other formality, it is still possible to give effect to the variation by way of waiver or promissory estoppel. See Practice Note: Contract variation and Contract variation—checklist, which sets out the drafting considerations to take into

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