Dear [insert name of authorised recipient on behalf of counterparty], [insert name of agreement]: [insert client name] and [insert counter-party name] 1 [As you are aware, we act OR We act] for [insert client name] (our client).

Commercial analysis: The claimant (EMFC) claimed commission and outstanding payments under a contract with the defendant The Resort Group (TRG) in relation to TRG’s entry into facilities with a third party. At first instance, TRG unsuccessfully argued that EMFC had repudiated the contract so EMFC was entitled to the payments. However, TRG succeeded in showing that EMFC had not been an effective cause of the transaction and was not therefore entitled to the commission. Following cross-appeals by both parties, the Court of Appeal held that EMFC was entitled to both the commission and the outstanding payments. The case involved consideration of contractual construction and implication of terms in the context of effective cause terms, as well as principles of repudiation, and provides some salutary lessons for both transactional lawyers and litigators alike. Written by Jon Felce, partner at PCB Byrne LLP.

This Precedent is a proforma letter from an employer to an employee enclosing a draft compromise agreement. It assumes the employee is still in employment and envisages a period for negotiating and agreeing settlement terms. It explains what ‘without prejudice’ and ‘subject to contract’ mean, and deals with the requirement for the employee to obtain independent legal advice, and whom to contact to discuss proposals. For further information on drafting a compromise agreement, see Precedent: Ireland—Compromise Agreement [Type on employer's letterhead] Without prejudice & subject to contract Strictly private & confidential [Insert name and address of employee] [Insert date] Dear [insert name of employee] Re: [insert name of employer] (the Company) Enclosed with

SCHEDULE Bond Number [insert bond number] Dated: Parties 1 The Employer: [insert Employer’s name] incorporated in [England and Wales] (Company Number [insert Employer’s company number]) whose registered office is at [insert address] 2 The Contractor: [insert Contractor’s name] incorporated in [England and Wales] (Company Number: [insert Contractor’s company number]) whose registered office is at [insert address] 3 The Surety: [insert Surety’s name] incorporated in [England and Wales] (Company Number [insert Surety’s company number]) whose registered office is at [insert address] (A) The Building Contract: the contract dated [insert date of Building Contract] between the Employer and the Contractor for the construction of [insert brief description of the works] (the “Works”) (B) Maximum Bond Amount: The aggregate amount of £[insert amount] (C) Expiry Date: [The date of practical completion/making good defects of the Works in accordance with the Building Contract] (D) Insolvent/Insolvency: [Insert corresponding definition from Building Contract] This Performance Bond (the “Bond”) comprises the Schedule attached at the beginning of this document and the following terms and conditions. 1 Words and phrases defined in the Schedule shall have the same meaning in these terms and conditions. 2 The Employer has appointed the Contractor to carry out the

This Practice Note considers the steps which a business can take to review its commercial contracts with a view to extracting maximum value and minimising costs. The Practice Note explains the circumstances which might prompt a legal contract review, what should be reviewed and who should be involved in the review process. It also explains the key elements of the contracts reviewed from both a customer’s and a supplier’s perspective. Purpose of review A contract review is intended to be a periodical review carried out by a lawyer in conjunction with key business stakeholders, over and above the contract management carried out by the business operationally day to day. Although a contract review may be prompted by issues arising as and when they occur from time to time, it is also beneficial to schedule a periodical review at a given point in the contract lifecycle or financial year to offer the opportunity for the business to keep on top of its options available to extract value, minimise unnecessary costs and avoid exposure to contracting

Date [insert date of Agreement] Parties 1 [insert name of Employer] of [insert address] incorporated in England and Wales with company registration number [insert company registration number] (the 'Employer') 2 [insert name of Contractor] of [insert address] incorporated in England and Wales with company registration number [insert company registration number] (the 'Contractor') Whereas (A) The Employer has entered into a contract with the Contractor for the[ design and] construction of a [insert brief description of the project] at [insert location of site] (the 'Building Contract'). (B) [There has been a delay to the progress of the works under the Building Contract OR The Employer has increased the scope of works under the Building Contract OR The Employer wishes to shorten the period for the completion of the works]. (C) The parties have agreed to accelerate the progress of the works in accordance with the terms of this Agreement. IT IS HEREBY AGREED as follows 1 Definitions and interpretation 1.1 In this Agreement the following expressions shall have the following meanings: Accelerated Completion Date • means [revised (accelerated) completion date]. Acceleration Payment

What is prepayment finance? Buyers frequently provide finance facilities to commodity producers by way of paying in advance for goods and commodities. Prepayment finance (a type of commodities finance) is an established structure used to provide finance directly to buyers or traders of goods and commodities and indirectly to producers/exporters of goods and commodities. It involves an advance payment by a buyer (known as the offtaker) to a producer/exporter of goods and commodities which is financed by a separate loan made by a lender (usually a bank or syndicate of banks) to the offtaker. These arrangements are useful to: • the producers because it means that they can access credit which would not be available to them through the banking system, and • the buyers because it allows them to negotiate long term supply contracts with producers in exchange for the provision of finance They are particularly useful where the producer is based in a country which has exchange control regulations or a taxation regime which prohibits or penalises direct lending to producers by overseas financial institutions. Such regimes

Commercial analysis: Unsuccessful appeal by the defendant travel company in a contract dispute following a cruise holiday. The parties primary dispute turned on when the contract was concluded and therefore which terms were incorporated. The Court of Appeal found that the claimants were correct on the date of formation and incorporation remitting the case to the County Court for quantum assessment. Written by Alexander Whatley, barrister at 3PB Chambers.

ARCHIVED: This Practice Note has been archived and is not maintained. The UK is no longer bound by the Rome Convention, as a matter of international law, having left the EU. However, the substantive rules continue to apply in some cases, ie if the contract was entered into between 1 April 1991 and 16 December 2009 and meets the criteria required under the act. Consequently, the substantive rules have been retained in the C(AL)A 1990 but they are subject to amendments set out in The Law Applicable to Contractual Obligations and Non–Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019/834. For guidance on the current position, see Practice Note: Contracts (Applicable Law) Act 1990—application and interpretation. This Practice Note identifies when the Rome Convention applies and when it does not. The exclusion of renvoi is explained as is the impact of public policy consideration and what happened when a state has more than one legal system. To determine whether the applicable law regime under the convention applies, or whether some other regime applies, see Practice Note:

This Practice Note highlights key differences between the law in Scotland and England from the perspective of an English lawyer practising in the area of Construction law. Terminology differences are not addressed in this Practice Note. Assignment/Assignation In England, there are two types of assignment, legal and equitable assignment. In Scotland, there is no concept of equitable assignment. The transfer of incorporeal property, such as rights arising under a contract, is known as assignation. It is a two-stage process. The first stage is an agreement to transfer the property which creates a personal right in the property. A personal right is one against another person for the performance of an obligation, in this case, the performance of transferring the property. The second stage is conveyance (the actual transfer of legal title), which creates a real right in the property when notice has been given to the other party of the assigned contract. In England, it is not possible to assign obligations under a contract without the consent of the party entitled to

This Practice Note contains a jurisdiction-specific Q&A guide to commercial contracts in Germany published as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Lutz Abel Rechtsanwalts PartG mbB—Marius Mann; Benjamin Baisch; Björn Weidehaas 1. Is there an obligation to use good faith when negotiating a contract? Yes. Good faith is regulated in section 242 of the German Civil Code (BGB). It is a fundamental principle under German law. It establishes the obligation on both parties in a contract to reliably and sincerely perform their obligations, taking customary practice into consideration. However, unless there is a violation of specific rules of law of the BGB or the German Commercial Code (HGB), it is rather hard to enforce a party's right that is established only on the general rule of section 242 of the BGB. The principle of good faith is specified, for example, in section 138 of the BGB (no legal transaction contrary to public policy; no usury) and in section 307 et seq of the BGB (no unreasonable

In approaching this, the steps to consider are as follows: • are the affiliates made party to the agreement by incorporating them in the definition? • if so, does the signatory have authority to sign on behalf of each affiliate? • if not, is there privity of contract or would the affiliate be able to enforce the terms of the contract? Are the affiliates made a party to the agreement by incorporating them in the definition in this manner? In an ordinary commercial context, it is not normally necessary to prove that the parties to an express agreement in fact intended to create legal relations. Absent proof to the contrary, it will be presumed that the parties did have such intention. The onus of proving that there was no intention is on the party who asserts that no legal effect was intended and that onus is a heavy one. The test as to contractual intention is to be assessed objectively: the fact