Variation of contracts Variation of a contract occurs when the parties agree to change certain terms from those originally agreed, while the remaining terms continue to operate without amendment. For more information on variation of contracts, see Practice Note: Contract variation. The variation can be effected in the following ways: • written agreement—this could be by way of a formal contract, deed, correspondence or emails • oral agreement—however, if the original contract provides that the agreement can only be varied in writing, such a clause is usually effective to prevent any oral variation (Rock Advertising Ltd v MWB Business Exchange Centres Ltd) • by conduct—the parties act in a manner which is different from the original agreement For a variation

The Agreement, Recitals, Articles and Contract Particulars at the start of a JCT contract set out the project specific details for the particular works to be carried out. It is very important that these are fully completed and that the details are correct to avoid ambiguity and disputes regarding what is required. This checklist provides practical guidance as to how to complete the details including links to relevant Practice Notes which provide detailed information on the areas covered. It is aimed at those who are relatively new to dealing with JCT contracts. An employer will often arrange for the architect/contract administrator or other consultant to complete the particulars at the start of the contract and will then ask its lawyer to check the contract before the parties execute it. Alternatively, a lawyer may be asked to fill in all of the details but they will need input from the client or its consultants as to the details to be inserted. This checklist can be used as a reference where completing or checking the particulars. For

This is a Checklist for in-house lawyers to provide to those of its employees (eg procurement or sales professionals) who are engaged in negotiating commercial contracts. It sets out the primary issues to consider when negotiating or reviewing a business-to-business commercial contract, and includes practical guidance. This Checklist may be suitable for use in low risk contracts where employees who are not legally qualified are authorised to conduct negotiations and contract review. It may be customised as required to work with a company playbook on contract negotiation and review, to include suggested fall-back drafting positions and escalation points for recourse to a legal team as appropriate. As it is intended to be used by non-legal professionals, it does not include links to further detailed legal commentary in each case. For a Checklist intended for use by legal professionals with links to further information, see: Commercial contract drafting and review—checklist. In-house lawyers should check that business personnel engaged in negotiating and concluding commercial contracts do so in accordance with all internal protocols such as negotiation

Subject to contract If a party who strikes a bargain wishes to make it clear that they do not intend to enter into a binding contract until a formal contract has been exchanged, they must make it clear that the agreement is subject to contract. The most common method for doing this is to note the term on all correspondence relating to the matter. This is advisable even though the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 mean that various formalities must be observed to create a valid contract for the sale of land, or of any interest in land. A further benefit is that an estoppel is very unlikely to be established in order to enforce an agreement where the claimant and the defendant are engaged in ‘subject to contract’ or ‘without prejudice’ negotiations, or make an oral agreement to transfer land, where both parties know they will not be bound until a formal contract is executed and that either party is free to withdraw at any time. For

In answering this Q&A, we have assumed that the contract in question is a business to business (B2B) contract. A breach of contract is a failure to perform contractual obligations without lawful excuse. Remedies for breach of contract depend on the nature of the clause in the contract and the consequences of its breach. Breach of contract gives rise to a number of remedies. The remedies

Section 3 of the Unfair Contract Terms Act 1977 (UCTA 1977) provides that, when dealing on one party’s written standard terms of business, that party cannot, by reference to any contract term: • exclude or restrict any business liability in respect of their own breach of contract, or • claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of them, or to render no performance at all (in respect of the whole or any part of their contractual obligations) except to the extent that such contract term satisfies the requirement of reasonableness. In relation to contracts entered

In addition to the guiding principles on contract interpretation provided by Lord Hoffmann in ICS (see Practice Note: Contract interpretation—the guiding principles), further rules have been developed as aids to contract interpretation. The starting point is the parol evidence rule, which restricts the admissibility of extrinsic evidence as a means of adding to, varying or contradicting a written agreement. For related guidance on issues of admissibility, see Practice Notes: • Contract interpretation—admissibility of surrounding documents • Contract interpretation—admissibility of pre-contractual negotiations and statements Parol evidence rule—what is it? The parol evidence rule provides that, where parties have a signed agreement, it is not generally permissible to adduce extrinsic evidence to: • show what the parties’ intention was in entering that agreement (Prenn v Simmonds) • contradict, vary or add to the terms of the written agreement—this extends to implied terms (Jacobs v Batavia) The parol evidence rule only applies in respect of written contracts. The parol evidence rule operates to exclude not only oral evidence, but all forms of

Rescission can either mean a contract is discharged by breach or a contract is treated as if it never existed—known as rescission ab initio. This Practice Note explains what these two different remedies mean, what options are available to the parties and what the Standard Conditions of Sale (SCS) and the Standard Commercial Property Conditions (SCPCs) provide in that respect. For contractual remedies in relation to property contracts generally, see Practice Notes: • Notice to complete • Repudiation of property sale contracts • Specific performance of property agreements • Liability for breach of property contract after completion • Return or forfeiture of a deposit • Misrepresentation, misstatement and non-disclosure in property matters • Exclusion clauses in property contracts—misrepresentation • Rectification—mutual mistake • Rectification—unilateral mistake, and • Rescission in the context of a claim based on mistake The term rescission is used to describe two very different remedies: • rescission ab initio, and • rescission for breach (or more accurately discharge by breach) Rescission ab initio Rescission ab initio is an equitable

This Q&A refers to the assignment of a business-to-business commercial contract which is not subject to any specific sector or industry regulation. This Q&A assumes that the parties to the contract are not subject to any controls external to the contract in question (eg other contractual or commercial restraints) prohibiting an assignment. Assignment An assignment is 'an immediate transfer of an existing proprietary right, vested or contingent from one party to another'. As set out in Practice Note: What constitutes a valid assignment of a contract?, an assignment takes effect either: • as a legal assignment—provided it satisfies all the requirements of section 136 of the Law of Property Act 1925, or • as an equitable assignment—which can arise when one or more of the requirements to effect a legal assignment is missing For a legal assignment to be effective, the following criteria need to

A typical contract lifecycle incorporates a broad range of activities including; the preliminary preparations necessary to define the project scope and identify a suitable business partner, drafting and negotiating contract terms, obtaining the necessary contract approvals, formally executing a contract, managing the performance of a contract once it is in force, dealing with contract breach

This Practice Note considers assigning contracts (transferring contracts): what amounts to a valid assignment of a contract, what can be assigned, when a contract can be assigned, how to assign a contract, by law and in equity, whether consent to an assignment is required, what defences remain where a benefit in a contract is assigned to a third party and how to challenge assignments. It also includes consideration of the assignment of receivables. For guidance on common contract assignment scenarios, see Practice Note: Assigning contracts—common scenarios and considerations. For guidance on the key practical and commercial considerations when assigning contracts, see Practice Note: How to assign rights under a contract. Note also that when discussing assigning contractual rights, reference may also be made to assigning ‘chose in action’ in the sense that the benefit of a contract has been held to be a chose in action. When is assignment of contracts relevant for consideration? Contracts, or rather, rights under contracts, are frequently assigned as part of the way companies run their

This Checklist can be used when preparing a building contract for signature. It is designed to help avoid errors when preparing or checking construction documents before they are signed by the parties and completed. • Consistency with other documents From the outset, liaise with the member of the professional team responsible for preparing contract documents such as Preliminaries and Employer’s Requirements to ensure that these are consistent with the schedule of amendments and accurately reflect the intentions of the parties. For more on drafting a building contract, see: Drafting a building contract/schedule of amendments—checklist. • Details of the parties Include full details for all contracting parties—the full company name and address, plus the registered company number (if any) as company names may change in future. Confirm the details are correct at Companies House (if applicable). • Contract Particulars Review the Contract Particulars (where