Express and implied contractual terms distinguished Contractual 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 usage This Practice Note considers statutory implied terms in contracts for the supply of goods and services, being the implied terms under the Sale of Goods Act 1979 (SGA 1979) and the Supply of Goods and Services Act 1982 (SGSA 1982). It considers what the implied terms under SGA 1979 and SGSA

1 The Contractor shall, immediately upon the execution of this Contract, provide to the Employer: 1.1 a performance bond or guarantee of the

This Practice Note sets out the different applicable law regimes that may be applied by the courts of England and Wales. The applicable regime depends on whether the dispute is contractual or non-contractual and the date that either the contract was entered into or the date of the harmful event (for a non-contractual claim). The regimes set out a series of complex rules to be applied by the courts when determining the relevant applicable law. In the majority of cases, it will be easy to determine whether the claim involves a contractual claim or a tortious claim. In cases in which it is not, it will be important to determine and characterise the obligations in dispute, ie whether they are ‘contractual’ or ‘non-contractual’. This will then determine the applicable law regime to be applied. This may potentially have a determinative effect on a claim if the applicable law under a contractual regime is different to that determined under a non-contractual regime. Note: what amounts to a ‘contract’ for the purposes of applicable law can be open to debate.

Construction analysis: The case involved a tri-partite dispute over a residential property development (‘the development’) in Wilmslow, Cheshire. The judge held the property developer (‘the developer’) liable in nuisance to the claimants, the owners of neighbouring property, on the basis that the development had altered surface water runoff patterns and caused ongoing flooding of the claimants’ garden. Even though the overland flow of rainwater had occurred naturally from the development to the claimants’ property pre-development, the applicable standard of care in nuisance was held to be the objective one rather than the measured duty derived from Leakey v National Trust. This was because the developer had created a nuisance by carrying out works that made the ‘natural’ position materially worse. This case summary deals only with the claim brought by the claimants in nuisance (the proceedings also included claims by the third and fourth defendants against the developer for fraudulent misrepresentation, breach of contract and contribution). Written by Nicola Atkins, barrister at Crown Office Chambers.

This Q&A assumes that: • the question relates to a business-to-business transaction • the question relates to a contract which has been drafted and negotiated in the traditional way and is not an e-commerce transaction entered into between parties via website terms and conditions • the question relates to the execution of a simple contract • the question relates to the law of England and Wales Contract formation General principles of contract law apply to contracts formed virtually. A simple contract (in the absence of any specific legal requirements regarding the form of the relevant arrangement) may be made: • in writing (including via electronic documents) • by word of mouth • by conduct • by a combination of writing, word of mouth and conduct A simple contract (whether made electronically or in any other manner) may be enforced if there is: • offer and acceptance • sufficient consideration • intention to create legal

All the standard forms of building contract make specific provision for the liabilities which are at the contractor or employer's risk and which party is to insure those risks. See, for example, Practice Notes: JCT contracts—insurance, NEC contracts—insurance, FIDIC contracts (pre-2017 editions)—insurance and FIDIC contracts 2017—insurance. However, if the building contract is oral, or if the written terms are silent, then the common law provisions will prevail. What are the contractor's potential liabilities? The contractor's liabilities are: • liability in tort to third parties for injury, death or damage to property caused by the contractor's negligence (see Practice Note: Negligence in construction), and • liability to the employer in respect of damage to the works caused by the contractor’s own negligence or for breach of contract (see: Contract law for construction lawyers—overview) The contractor is not liable to the employer if the works are damaged by any cause other than the contractor’s own negligence or breach of contract. For example, damage caused by fire, flood, theft, etc or damage that was an inevitable

Report on construction documentation This Precedent is a template for a due diligence report on construction documentation to be provided to a purchaser in relation to the potential purchase of a property. The template has been drafted on the basis that the construction work at the property has reached practical completion. It sets out the key elements of the building contract and related documents (appointments, warranties, security documents, etc) that should typically be covered in the report. What needs to be covered in a report will ultimately depend upon the property in question, the construction documents and the replies to enquiries provided by the vendor, however, this is intended to provide a starting point for a report. Please note that while this form of report can be used for reporting on any forms of construction contract, if the construction contract is not a RIAI contract, some of the language may need to be amended to match that in the contract. [insert name of property] Executive summary This section should be used to summarise the overall view of the construction documents

Parties who live together may regulate the terms of their cohabitation by entering into a cohabitation contract. It is prudent to do so to ensure clarity both during the course of the relationship and in the event that it should break down. A cohabitation contract may make provision for both situations. This Practice Note details the matters to be taken into account when drafting a cohabitation contract and the general principles to be adhered to. It also provides guidance on oral agreements between cohabitants. Cohabitation contracts were once void on the ground of public policy. That is no longer the case. In Dyson Holdings Ltd v Fox, Bridge LJ said: 'There has been a complete revolution in society's attitude to unmarried partnerships of the kind under consideration. Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared.' For guidance on the terms of a cohabitation contract including financial provision, property rights, provision for children and variation, as well as provisions that

This Practice Note examines the scope of damages as a remedy for an employer in employee competition cases, eg in respect of breach of the duty of fidelity or post-termination restrictions (restrictive covenants). It compares damages to the alternative remedy of an account of profits. It looks at the assessment of damages in both contract and tort claims, including the circumstances in which negotiating damages (previously known as ‘Wrotham Park’ damages) may be appropriate. It considers factors relevant to pursuing a damages claim and provides details of further relevant resources. The remedies available in cases involving attempts to enforce post-termination restrictions may conveniently be divided between: • interim remedies available before final trial, and • remedies available following the final trial of the case Interim remedies typically consist of injunctions—see Practice Notes: • Interim injunctions in employee competition claims and confidentiality claims • Springboard injunctions in employee competition claims • Delivery up orders in employee competition claims and confidentiality claims • Search orders and imaging orders in employee competition claims and confidentiality claims • Freezing orders

This Agreement is made on [date] Parties 1 [name of employer] a company incorporated and registered in [England and Wales] with company number [insert number] and having its registered office at [insert address] (the ‘Employer’); and 2 [name of host company] a company incorporated and registered in [England and Wales] with company number [insert number] and having its registered office at [insert address] (the ‘Company’). Background: (A) The Employer employs the Secondee[ as [insert details.]]. (B) The Employer intends to second the Secondee to the Company in order to provide the Services during the Secondment Period. (C) The Employer and the Company have entered into this Agreement to record the terms on which the secondment will operate as between the Employer and the Company. 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: Agreement • this Agreement including the Schedules; Company Affiliate • any subsidiary or holding company of the Company and any subsidiary of any such holding company (where ‘subsidiary’ and ‘holding company’ have the meanings given in section 1159 of the Companies Act 2006); Commencement Date • [insert date]; Confidential Information • all information or

Where an employer fails to pay sums owing under a settlement agreement, the employee may seek to enforce their rights by bringing a claim for breach of contract. A claim for breach of contract may only be brought in the employment tribunal if: • it is not a claim for breach of a contractual term:

International contracts A contract may be considered international if the parties are based, or hold significant assets, in different jurisdictions, or if any of the parties' obligations are to be performed in different jurisdictions. International contracts will require consideration of further issues in addition to general commercial contract considerations. One major issue is that of the governing law of a contract (also known as the applicable law). For all commercial contracts concluded on or after 17 December 2009, courts in UK will apply Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) to determine the law applicable to contractual obligations. For information on the impact of Brexit on Rome I, see Practice Note: Brexit—applicable law [Archived]. Applicable (or governing) law of the contract As freedom is a fundamental cornerstone of the system of conflict of laws for contractual obligation, parties in international contracts have the freedom to choose the applicable law to govern