On 26 June 2020, the Corporate Insolvency and Governance Act 2020 (CIGA 2020) inserted section 233B into the Insolvency Act 1986 (IA 1986). Section 233B places restrictions on so-called ‘ipso facto’ provisions in relation to contracts for the supply of goods or services. An ‘ipso facto’ provision allows a party to exercise contractual termination rights where a company enters into an insolvency or restructuring procedure. Under the new section 233B, a provision in a contract for the supply of goods or services ceases to have effect when a company becomes subject to an insolvency procedure if under the provision: • the contract or the supply would terminate because the company becomes subject to the insolvency procedure, or • the supplier would be entitled to terminate the contract or the supply, or do any other thing, because the company becomes subject to the insolvency procedure It is

Contractual claims There is no requirement that the agreement settling a contractual claim must be in a particular form; since the Employment Tribunals Act 1996 (ETA 1996) (under which the [Employment Tribunals] Extension of Jurisdiction (England and Wales) Order 1994, SI 1994/1623 was re-enacted) does not include any prohibition against contracting out, the position regarding settlement is the same as with comparable proceedings in the civil courts; there is no need for such a contract to be drawn up by a conciliation officer or to be in the form of a settlement agreement. However, settlement of a contractual claim must be contained in a binding contract, ie there must be offer and acceptance, an intention to create legal relations and certainty (there is no requirement for consideration in Scots contract law). For further information, see: Formation and interpretation—overview and the Practice Notes referred to in that overview. Statutory

In construction, a collateral warranty is ancillary to either a building contract, sub-contract or a consultant’s appointment. The warranty creates a contractual link where there would not normally be one, thereby enabling a third party, such as a purchaser or tenant occupying or buying recently completed buildings, to have a direct contractual relationship with a construction team member. An employer will also often receive the benefit of a collateral warranty from sub-contractors and consultants, where their appointment has been novated to the contractor, as it would otherwise not have a direct contractual link to those members of the construction team. The beneficiary can then rely upon the undertakings or covenants contained in the warranty in order to bring an action in contract against the warranting party (the warrantor) if there has been a breach. In

This Q&A assumes that: • the question relates to the use of a signature in the context of commercial negotiations • the question does not relate to inter-parties correspondence in the course of litigation Contracts can be formed in one of three ways: • orally • by conduct, or • ‘under hand’ (in writing) For more information on contract formation, see: Formation and interpretation—overview. Where a contract is required to be made in writing, it may be subject to compliance with certain formalities. For example, a contract for the sale of land, or any interest in land must comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and must be in writing, contain or incorporate all of the terms expressly agreed by

For the purposes of this Q&A we have assumed this is an otherwise enforceable business to business commercial contract with an effective date which is retrospective from the actual date. We also assume that such document is a simple contract and not a deed, and that no specific laws or legislation apply to the specific subject matter of the contract. The date on which an agreement is intended to take effect can be different to the date on which it is signed. Unless otherwise provided, an agreement takes effect once signed by all parties. If the effective date is not the date on which the document is signed by all the parties this should be made clear in the agreement itself in a separate commencement clause. See the Drafting Notes to Precedent: Commencement and term clause and Practice Note: Executing documents—deeds and simple contracts for more information. Consideration too should be given to the general

Taking the example of the Employment Rights Act 1996 (ERA 1996), a 'worker' is defined as an individual who has entered into or works (or worked) under: • a contract of employment, ie a contract of service or apprenticeship, or • any other contract by which: ◦ the individual undertakes to do or perform work or services personally, and ◦ the person for whom the work is done (or services are performed) is not a client or customer of a business being run by the individual In broad terms, the difference between the statutory definition of ‘worker’ and ‘employee’ under ERA 1996 is that, in order to be a worker, an individual does not have to establish other key elements necessary for employee status, in particular: • mutuality of obligation (the obligation on the employer to provide or pay for work and on the employee to perform it), or • control (eg how, when and where the work is done) For

Boilerplate provisions in public sector contracts This Practice Note looks at human rights clauses in public sector contracts. For more information on what contracting authorities (and other interested parties) need to know when using boilerplate provisions in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations. Authorities that are minded to incorporate human rights provisions in their contracts need to give careful thought in advance to a number of questions.  How will it be established that a breach of human rights constitutes a breach of contract, and how will this be demonstrated if challenged in a contract dispute?  What would be the contractual consequence of breach: termination of the contract, damages or some other remedy?  Careful thought would have to be given to the application of such remedies.  None of this is to say that such clauses should not be applied and given effect to, but that their application can cause serious issues during and

The mere act of a company going into administration does not render a post-termination restriction (also known as a restrictive covenant) unenforceable. Consideration will need to be given to: • the circumstances in which a post-termination restriction becomes unenforceable, and • the effect of administration on the contract of employment Effect of repudiatory breach A repudiatory breach of contract by the employer will usually result in the employer being unable to rely on any post-termination restrictions (Billposting Co Ltd v Atkinson, Cantor Fitzgerald v Bird). However, there will be no repudiatory breach or wrongful dismissal where the terms of the contract expressly permit the employer to give pay in lieu of notice rather than allowing the employee to work their notice, and the employer dismisses in accordance with those contractual terms (Stewart (Rex) Jeffries Parker Ginsberg v Parker). For more information, see: • Practice Note: Post-termination restrictions—the effect of repudiatory breach • Practice Note:

Crystallisation of floating charges A floating charge may Crystallize by operation of law or it may Crystallize in accordance with a contract. Crystallisation by contract can by divided into those events that entitle the lender to give notice of crystallisation and those that result in the floating charge being crystallised automatically. For more information on how floating charges may crystallise, see Practice Note: Crystallization of floating charges. Most debentures will clearly set out which events will trigger crystallisation by notice and which will trigger the automatic crystallisation provisions. For more information, see Crystallisation of floating charges — Crystallisation by contract. Effect of Crystallisation Once a floating charge has crystallised, the key impact is that the chargor can no longer deal with the floating charge assets without the chargee's consent. In practice this will make it difficult for the chargor to run its business. From the chargee's

In this Q&A we have limited our research to cover limitation periods in respect of agreements and assume a contractual agreement by which A has loaned money to B. We have focussed on any limitation defence B may have to an action brought in 2017 based on an agreement providing for the loan to be repaid in 2008. The limitation period for bringing a claim for breach of contract is: • six years from the date of breach of a 'simple contract' (one which is not under seal or a contract of record) pursuant to section 5 of the Limitation Act 1980 (LA 1980, s 5) this includes: ◦ a claim for money had and received

Design liability: difference between ‘reasonable skill and care’ and ‘fitness for purpose’ We want to discuss with you the approach that should be taken on the level of design liability in the [building contract OR appointment] with [insert name of the Contractor/Consultant appointed on the project] (the ‘[Contractor OR Consultant]’) in relation to [insert name/description of the project]. [The presumed position, if the contract was silent on what the Consultant’s design liability would be, is that the Consultant must carry out its design responsibilities with reasonable skill and care. OR The presumed position, if the contract was silent on what the Contractor’s design liability would be, is that the Contractor’s liability for the whole of the works (ie the design, goods and materials) is to ensure that they are fit for purpose.] We would, however, normally insert a clause stating something along the lines of ‘the [Contractor OR Consultant] must

For the purposes of this Q&A we have focused on the rules and procedure concerning voluntary transparency notices under the Public Contracts Regulations 2015, SI 2015/102. For public contracts subject to the Public Contracts Regulations 2015, SI 2015/102, the requirements for publishing contract notices in the Official Journal of the European Union (OJEU) in accordance with the rules of procedure are set out in the Public Contracts Regulations 2015, SI 2015/102, Pt 2 (see in particular regs 48 to 52). A voluntary transparency notice (also known as a ‘voluntary ex ante transparency notice’ or ‘VEAT notice’) is used in limited circumstances arising under the Public Contracts Regulations 2015, SI 2015/102, Pt 3. A voluntary transparency notice may be published by a contracting authority where a contract has been awarded without prior publication of a contract notice in accordance with the Public Contracts Regulations 2015, SI 2015/102, Pt 2 (ie a direct