Payee’s payment notice in default of payer’s notice Reference: [insert appropriate reference to the contract and project] Date: [insert date] To: [insert recipient’s name] Payment due date: [insert

This Checklist sets out the key issues relating to the legal concept of delivery in business to business (B2B) contracts and the issues which should be considered when negotiating and drafting contract terms concerning delivery of goods. What is delivery? Delivery refers to the voluntary transfer of possession of goods from one person to another, rather than the mere dispatch of goods. Legal significance attaches to delivery entitling the seller to demand payment once delivery has occurred or, alternatively, the absence of delivery may entitle the buyer to claim damages. According to section 27 of the Sale of Goods Act 1979 (SGA 1979), the seller’s basic obligation is to deliver the goods in accordance with the terms of the contract. The parameters of this primary obligation are delineated by the provisions of SGA 1979. The point at which delivery takes place is often indicative of when risk passes from the seller to the buyer. Ideally, parties should specify in the contract the manner in which delivery takes place. In this regard, often the contract of sale

UK jurisdiction There is no UK court; the courts for the UK are those in the three different jurisdictions, being England and Wales, Scotland and Northern Ireland. The UK jurisdiction clause may therefore be problematic in determining which court has jurisdiction. For guidance on determining jurisdiction within the UK, see Practice Note: Allocation of jurisdiction within the UK courts. Can Company A be served with the claim form at its UK offices? It has been assumed that the courts of England and Wales have jurisdiction to determine the dispute. The rules on service can be difficult to navigate and parallel regimes are set out in the Companies Act 2006 and in CPR 6. The application of the rules

Construction analysis: Lord Lake held that all five obligations in dispute were extinguished by prescription. The decision confirms that the Prescription (Scotland) Act 2018 (P(S)A 2018) did not alter the section 11(1) test for when loss, injury or damage occurs, and that the knowledge requirements in s 11(3A) must be applied against the existing authorities following Gordon’s Trustees. The court also reaffirmed a restrictive approach to s 6(4), holding that ordinary contractual conduct did not induce relevant error, and found that remedial works were not a relevant acknowledgement under s 10(1). For practitioners, the judgment underlines that prescription remains highly fact-sensitive and may produce different prescriptive timetables across design-and-build contractual chains. Produced in partnership with Eric Johnstone and Orla White of Brodies LLP.

Construction analysis: The Inner House of the Court of Session held that the pursuer’s claims against an architect under a collateral warranty were not time-barred. Central to the court’s decision was its finding that the prescriptive periods applying to claims under the collateral warranty and claims under the defender’s original appointment agreement were not coterminous. Rather, the prescriptive period for claims under the collateral warranty could not have begun until the warranty was granted—which was some years after the works were complete.

Construction analysis: The Technology and Construction Court held that payment of a deposit was not a condition precedent to exercising an option for the purchase and development of land. Further, the owners had waived the requirement for the developer to pay the deposit (or were estopped from insisting on such payment). Accordingly, the owners were in repudiatory breach by refusing to accept the exercise of the option, and were liable to the developer for loss of profit.

1 Sub-Contractor warranties and undertakings 1.1 The Sub-Contractor warrants that: 1.1.1 the Sub-Contractor has observed and performed and shall continue to observe and perform all the terms and obligations of the Sub-Contractor under the Sub-Contract 1.1.2 to the extent that the Sub-Contractor takes responsibility for the design of the Sub-Contract Works under the Sub-Contract, the Sub-Contractor has exercised and shall continue to exercise the reasonable skill and care to be expected of a properly qualified and competent architect or other appropriate professional designer experienced in projects of similar scope, type, size, nature and complexity as the Sub-Contract Works. 1.2 The Sub-Contractor's duties under this Memorandum shall be no greater and of no longer duration than the duties which it owes to the Contractor under the Sub-Contract, and the Sub-Contractor shall be entitled in any action or proceedings to rely on any limitation in the Sub-Contract and to raise the equivalent rights in defence of liability as it would have against the Contractor had the Beneficiary been named as joint employer with the Contractor under the Sub-Contract.

Some suites of construction contracts include separate forms of contract to be used where the contractor is to take responsibility for designing, as well as building, the works—the JCT suite, for example, contains the well-known JCT Design and Build form. The NEC3/NEC4 suites of contract take a different approach and do not include a separate design and build contract. The NEC4 suite introduced the Design Build and Operate (DBO) contract, but this form, as the name suggests, is intended for use where the employer wishes the contractor to design and build, but also operate/maintain, an asset for a period of time. The NEC Engineering and Construction Contract (ECC) is intended to be suitable for use whether the Contractor has no design responsibility, responsibility for the whole design, or for any part of the design of the works. NEC envisage that the requirements as to design will be set out in the Works Information (in NEC3 terminology)/Scope (under NEC4). This Practice Note looks at how design is addressed under the NEC ECC. For a more general discussion of design

This Practice Note considers when damages are available as a remedy for a misrepresentation claim with reference to the Misrepresentation Act 1967 (MA 1967). For consideration of when the courts will rescind a contract for misrepresentation and when parties can validly exclude or limit liability for misrepresentation, see Practice Notes: • Misrepresentation—rescission as a remedy • Misrepresentations—excluding and limiting liability for them When can you claim damages as a remedy for misrepresentation? MA 1967 provides a statutory basis for the recovery of damages in cases of misrepresentation under MA 1967, s 2 in addition to the common law action for damages for fraudulent misrepresentation or the closely related tort of deceit. Thus the position is that if the representee suffered loss as a result of having been induced to enter into the contract by the misrepresentation, they may have a claim for damages in the following circumstances: • where the misrepresentation was fraudulent (already available at common law) • where the misrepresentation was not fraudulent, but the representor is unable to show that they had reasonable

Implementation The General Data Protection Regulation, Regulation (EU) 2016/679, (the GDPR) came into force on 24 May 2016, but due to a two-year implementation period, its provisions will only be directly applicable and fully enforceable across all Member States from 25 May 2018. The GDPR will repeal the Data Protection Directive, Directive 95/46/EC, and replace the Data Protection Act 1998 (DPA 1998). Contract considerations For contracts that will not be in operation beyond the GDPR taking effect then the provisions of the DPA 1998 (rather than GDPR) will apply. However, when negotiating a new contract that requires data protection provisions and which is

This Practice Note explains what liquidated and ascertained damages (LADs/LDs) are and their purpose in a building contract. It considers the difference between liquidated damages and general (or unliquidated) damages and looks at the enforceability of LADs provisions and common grounds for challenging them (including that the clause is a penalty). The Practice Note also looks at how much LADs should be, capping LADs and the risks of inserting ‘nil’ or ‘N/A’ as the amount of LADs. For summaries of key cases that consider, or are relevant to, LADs clauses in construction contracts, see Practice Note: Liquidated damages in construction contracts—case law. What are liquidated damages? If the parties to a construction contract agree to liquidated damages, they are agreeing, in advance, to a fixed sum that will be payable as damages in the event that a particular identified breach of contract occurs. Liquidated damages are often also referred to as liquidated and ascertained damages and the acronyms ‘LDs’ and ‘LADs’ are both commonly used to refer to them. When liability for LADs occurs, they can

This Precedent Target product carbon footprint clause—schedule for consumer goods contracts is for insertion into a manufacturing contract for the supply of consumer goods to require parties to set a target product carbon footprint budget (which reduces