Novation Novation is the replacement of an existing contract for a new contract. One of the original parties to the contract transfers both its rights and obligations under the contract to a third party who is substituted for that original party. In effect, the third party replaces the original party. There are two requirements for an effective novation: • consent—the consent of all parties (the original parties and the new party) is required. The consent would usually be in writing but does not have to be. It can be given orally or inferred from conduct (CEP Holdings Ltd and CEP Claddings Ltd v Steni AS [2009] EWHC 2447(QB) (not reported by LexisNexis®)). A court can analyse the conduct of the parties to determine the nature of the contract, no matter what label the parties use • consideration—consideration is required as the novation amounts to a new contract. Good consideration can be provided by the mutual

The remedy of rescission should be distinguished from the remedy of termination for breach of contract. Rescission is not available as a remedy for breach of contract (though see below re a repudiatory breach). 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 is where the contract is treated as if it never existed. This remedy is available: • where the contract was entered into on the basis of a common/mutual mistake, or • where a misrepresentation by one party induced the other to enter into it Rescission for breach is available where one party accepts the other's repudiatory breach. A repudiatory breach is a breach of contract

Where a contract contains a reference to legislation, the question may arise as to which version of the legislation is meant. The default position is that the standard rules of contract law for determining the meaning of a contract apply. These examples illustrate that the European Union (Withdrawal) Act 2018 (EU(W)A 2018) does not displace this position. Example 1 ‘In this contract, the term “rest period” shall have the meaning given in the Working Time Regulations 1998.’ In this example, the reference is to EU-derived domestic legislation. It is a non-ambulatory reference (unless there is anything in the rest of the contract or context to indicate otherwise). For an explanation of ambulatory and non-ambulatory references, see Q&A: What are the rules on the interpretation of ambulatory and non-ambulatory references to EU-derived legislation in UK legislation post-Brexit? There is a provision in EU(W)A 2018

Whether an amount in a contract is inclusive or exclusive of VAT generally turns on the terms of the particular contract. If there is nothing in the contract between the parties at all, it is usually considered that section 19(2) of the Value Added Tax Act 1994 suggests a presumption that the amount is inclusive of VAT. However, the contract must be interpreted as a whole in the light of all of the circumstances of the parties’ relationship and the relevant facts surrounding the transaction as known to them (see para [24] of the Court of Appeal decision in CLP Holding Co Ltd v

When transferring an interest in land (whether freehold or leasehold), unless the contract provides otherwise: • any fixtures form part of the land and are transferred with it, and • any fittings (also known as chattels) do not form part of the land and will not be included Sometimes it can be difficult to determine whether a particular item is a fixture or fitting. This can lead to dispute as to whether that item is included in the sale. It can also lead to issues when apportioning the purchase price between the property and chattels included as part of the sale for stamp duty land tax (SDLT)/land transaction tax (LTT) purposes (see: Tax—fixtures and fittings below). Depending on the drafting, in the context of a lease (as between a landlord and tenant), whether an item is a landlord’s fixture, a tenant’s fixture or a fitting/chattel can have implications in relation to repairing obligations, reinstatement, insurance, rent review and yielding up. The majority of this Practice Note looks at the position on a sale of land (freehold

This Practice Note considers the allocation of risks and the insurance requirements in the NEC Engineering and Construction Contract (ECC). It considers the type of insurance to be maintained by both parties including Contractor’s All Risks insurance and public liability cover. For a more general background on the NEC3 and NEC4 suite of contracts, see Practice Note: NEC contracts—introduction. For details of how insurance is dealt with under other standard form contracts, see Practice Notes: JCT contracts—insurance, FIDIC contracts 2017—insurance and FIDIC contracts (pre-2017 editions)—insurance. This Practice Note covers both the NEC3 and NEC4 editions of the ECC. For consistency, the term ‘Client’ is used throughout as this is the term used for the developer/employer in the NEC4 contracts (the NEC3 ECC uses the term ‘Employer’). For a glossary of NEC terms, see Practice Note: NEC contracts—glossary. Where no distinction is made between clause numbers, the clause numbers throughout this Practice Note refer to both the NEC3 and NEC4 versions of the ECC. Regardless of whether the parties choose to amend the standard NEC ECC insurance terms (by

This Practice Note contains practical guidance on the commercial and contractual aspects of sports media and broadcasting, focusing in particular on the creation, protection and exploitation of sports media rights. It examines what sports media rights are under English law, how footage of a sports event is produced and delivered, and the principal terms of a typical sports media rights contract. It is common to hear or see commentators in the media refer to ‘media rights’ or ‘broadcast rights’ to a sports event, particularly where huge sums of money are paid for these ‘rights’ as with the FA Premier League. The purpose of this Practice Note is to examine and explain the key elements underpinning the creation, exploitation and protection of these rights from both commercial and contractual standpoints. Court of Justice judgments This Practice Note refers to Court of Justice judgments. For guidance on whether judgments of the Court of Justice are binding on UK courts, see Practice Note: Assimilated law. What are sports media rights? Many

A director of a company limited by shares is exposed to a wide range of potential liabilities that could arise as a result of their acts (or omissions) carried out during the course of business of the company under statute, contract or tort. The Companies Act 2006 (CA 2006) contains a general prohibition against exempting or indemnifying directors against such liabilities (see General rule against protection from liability). However, there are statutory exceptions to the general rule providing that directors can be protected from liability by: • the acquisition and maintenance of insurance by the company for its directors against liabilities (see Insurance) • the company giving qualifying indemnities to its directors against certain liabilities (see Indemnities) Directors can also be relieved from liability by the shareholders ratifying their acts of misconduct, subject to such conduct being capable of ratification (see Ratification). For broader commentary on the different ways in which a director may be relieved from liability which would otherwise fall upon them for breach of one of their duties or specific obligations

Introduction This Practice Note provides a negotiation guide for services agreements. It sets out key positions across 25 of the most commonly negotiated issues, and suggests potential compromises and key considerations depending on the scope of the contract, the relative bargaining strengths of the parties, and whether the reader is acting for the customer or supplier. It is intended as a high-level discussion of the issues, prompting the reader to consider what may be needed in the circumstances of any particular deal. Where relevant, specific Practice Notes are also referred to for further information. It is only relevant for business to business transactions. It does not discuss the issues in the context of IT services contracts, although many of the points raised are of similar application. Contents The following topics are covered: • General service standards • Quality/performance warranties (deliverables and ancillary goods) • Compliance with policies • Service levels and service credits • Milestones • Acceptance testing • Supplier relief • Payment obligations • Intellectual property (IP) ownership and licensing • Breach based indemnities • Third-party claim based indemnities

Introduction This Practice Note provides a negotiation guide for services agreements. It sets out key positions across 25 of the most commonly negotiated issues, and suggests potential compromises and key considerations depending on the scope of the contract, the relative bargaining strengths of the parties, and whether the reader is acting for the customer or supplier. It is intended as a high-level discussion of the issues, prompting the reader to consider what may be needed in the circumstances of any particular deal. Where relevant, specific Practice Notes are also referred to for further information. It is only relevant for business to business transactions. It does not discuss the issues in the context of IT services contracts, although many of the points raised are of similar application. Instead, see Practice Note: Negotiation guide—IT contracts. This Practice Note makes reference to example balanced drafting within Precedent: Services agreement (ongoing supply)—balanced for some of the topics discussed, as well as individual balanced clauses where available. For a quick reference point on the customer’s and supplier’s best positions and an example balanced

Dispute Resolution analysis: Damages in contract are intended to place the claimant in the same position as they would have been in if the contract had been performed. But how does the court differentiate between the ‘imaginary world’ in which ‘the contract is performed’ and the events which in fact took place? In this judgment, the court considered the scope of the appropriate counterfactual. The court held that contractual damages are not intended to put the claimant in the position they would have been in but for the breach of contract. Rather, they operate as a substitute for performance. The relevant counterfactual did not, in this case, reflect the likelihood that but for the breach, the level of trading under the contract would have been reduced. No discount on damages was therefore applied. Written by Harriet Campbell, professional support lawyer at Stephenson Harwood LLP.

ARCHIVED: This Practice Note has been archived and is not maintained. It summarises the law, guidance and practice relating to faulty goods and services in the UK, including remedies available to consumers, applicable to consumer contracts entered into before 1 October 2015. For contracts entered into after 1 October 2015, see our materials on the Consumer Rights Act 2015 listed in the ‘Introduction’ section below. Introduction This Practice Note summarises the law, guidance and practice relating to faulty goods and services in the UK, including remedies available to consumers where the trader does not comply with the contract for sale of goods and/or services, applicable to consumer contracts entered into before 1 October 2015 when the Consumer Rights Act 2015 (CRA 2015) came into force. This Practice Note considers the definition of consumer and of trader, sources of rights and remedies for consumers, rights and remedies consumers can benefit from, and exclusion of liability clauses. For information on CRA 2015 applicable to consumer contracts entered into on or after