Goods without consideration The Consumer Rights Act 2015 (CRA 2015) applies to the supply of goods, service and digital content for contracts. Where the trader has provided no consideration for goods transferred to a consumer, and the goods are not connected with any other promotional item, the CRA 2015 does not apply. The reason for this is that ‘if there is no consideration (that is, if a trader offers to supply goods completely free of any charge or other obligation) there is no contract at all.’ (Business Companion: The sale & supply of goods). This position is confirmed in the commentary Butterworth’s Trading and Consumer Law. This states: ‘Part 1 of the Act only applies to agreements made between traders and consumer where the agreement is a

Occupation orders made under Part IV of the Family Law Act 1996 (FLA 1996) (FLA 1996, s 30) provide a scheme for regulating the occupation of dwelling-houses between parties who are in, or who have been in, certain categories of relationship. The precise nature of the powers that the court has, the process for determining how they are to be exercised, and the duration of any order giving effect to them, depends on the nature of the relationship between the parties and the nature of any interest that they have in the relevant property. An application may be made under FLA 1996, s 33 by an applicant who is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue

An application to an employment tribunal for a declaration that an employee has permanent status under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTE Regulations 2002), SI 2002/2034, reg 9(5) may only be made if: • the employee making the application is in the employment of their employer, and • the employee has previously made a request under FTE Regulations 2002, SI 2002/2034, reg 9(1) for a written statement confirming their permanent status and the employer has either failed to respond to the request or responded with a statement giving reasons why the contract remains fixed term The employer is required to provide any response within 21 days of the request being made. The written statement that can be requested under

In answering this Q&A we have limited our research to cover business-to-business contracts for generic goods and services which are not subject to specific industry or sector regulation. In conducting our research we have focussed on the issues relating to unfair terms, limitation of liability and termination only. The provision of goods and services There are key statutes to bear in mind when drafting, negotiating or litigating in relation to a contract for the supply of services, they include: • the Supply of Goods and Services Act 1982 (SGSA 1982) • the Consumer Rights Act 2015 • the Provision of Services Regulations 2009, SI 2009/2999 • the Equality Act 2010 (see Practice Note: Equality Act 2010—discrimination in the provision of goods, services and facilities) • the Bribery Act 2010 (see Practice Note: The Bribery Act 2010—an introductory guide) • the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 • the Modern Slavery Act 2015 Parties should always assess

Liquidated damages clauses A liquidated damages clause is a clause whereby the parties to a contract fix in advance a sum of money to be paid by the defaulting party to the innocent party in the event of a breach. Liquidated damages clauses tend to take one of two forms, either: • the parties agree at the time of contracting that, in the event of a breach, the party in default must pay a stipulated sum of money to the other, or • they agree that in the event of a breach the party in default will forfeit a sum already paid to the other An analysis of any liquidated damages clause will usually involve determining whether the purported liquidated damages clause exceeds the boundaries of a 'genuine pre-estimate of loss' (enforceable) and is, in fact, a penalty and thus unenforceable. See Commentary:

Witnessing an electronically executed document—the legal position When executing commercial documents, the two most common situations in which attestation is required are: • execution of a deed by an individual (section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989)) • execution of a simple contract or deed by a company by the signature of one director of the company (section 44(1)(b) and (2)(b) of the Companies Act 2006 (CA 2006)) The LP(MP)A 1989, s 1(3) requires that: ‘...an instrument is validly executed as a deed by an individual if, and only if— (a) it is signed— (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature.’ In its 2019 report on the electronic execution of documents, the Law Commission confirms that an electronic signature may be witnessed. However,

There is no right under the Transfer of Undertakings (Protection of Employees) Regulations 2006 (TUPE 2006), SI 2006/246 to request a declaration that a variation of terms and conditions of employment is void under TUPE 2006, SI 2006/246, reg 4(4). For more information on the variation of contractual terms under TUPE 2006 generally, see Practice Note: TUPE—variation of contract terms. Where the transferee employer varies the terms and conditions of employment, it will need to ensure that it complies with the requirements of the Employment Rights Act 1996 (ERA 1996) in relation to the written statement of particulars of employment (see the section ‘Updated written statements of particulars under ERA 1996’ of Practice

Legal versus equitable assignments A so-called ‘legal’ assignment (also commonly known as a statutory assignment) derives from a statutory power for a contracting party to assign a chose in action. The most modern iteration of the right is found at section 136 of the Law of Property Act 1925 (LPA 1925). This provides that to take effect as a legal assignment, an assignment of a chose in action: • must be absolute and not purport to be by way of charge only, and • must be in writing and executed by the assignor In addition, express notice in writing must be given to the person from whom the assignor would have been entitled to claim the chose in action—eg a debtor (where the chose in action is a debt) or contract counterparty (where the chose in action consists of contractual rights). For more information on legal assignments, see Practice Note: Assignments

Section 232 of the Companies Act 2006 (CA 2006) contains a general prohibition against exempting or indemnifying directors against liability 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. 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, and/or • the company giving qualifying indemnities to its directors against certain liabilities Directors can also be relieved from liability by the shareholders ratifying their acts of misconduct, subject to such conduct being capable of ratification. The range of any insurance cover will depend

[ON YOUR LETTERHEAD] WITHOUT PREJUDICE SAVE AS TO COSTS [SUBJECT TO CONTRACT] [Insert date] [Insert name and address of other party’s solicitor] Dear [insert contact name] [Insert subject of letter] We refer to our open letter of [today’s date OR [insert date]]. 1 As set out in that letter, both we and our client are confident that, should your client issue proceedings in respect of its alleged claim detailed in your letter of claim dated [insert date] (the ‘Letter of Claim’), our client would be wholly successful in defeating such claim. [Were your client to issue such claim, our client would both defend the claim and issue a counterclaim in the terms set out in our letter dated [insert date of letter setting out threatened counterclaim] (the ‘Counterclaim Letter’) and we are equally wholly confident that our client

The UK public procurement regulations apply to public contracts in-scope, where the estimated value of the contract is no less than the financial thresholds set out in the relevant legislation, including: • the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102 • the Concession Contracts Regulations 2016 (CCR 2016), SI 2016/273 • the Utilities Contracts Regulations 2016 (UCR 2016), SI 2016/274 Prior to the UK’s withdrawal from the EU, public procurement in the UK was subject to financial thresholds set by the EU. These thresholds are set by the European Commission and reviewed every two years. Details can be found on the Official Journal of the European Union (OJEU) under 'EU Procurement Thresholds'. For background reading, see Practice Note: The EU public procurement thresholds. Although the EU public procurement directives are not within the scope of assimilated law, the implementing domestic regulations including those listed above (as well as their Scottish equivalents and the separate defence procurement regulations that

This Q&A assumes that the employer operates a general business rather than operating in a sector, such as healthcare or education, where special rules may apply as regards personal relationships between employees and service users. There are no specific laws governing personal relationships entered into by employees. However, some employment law issues to consider would include: • sex discrimination, see Practice Notes: Direct discrimination and Indirect discrimination • sexual harassment, see Practice Note: Harassment • harassment under the Protection from Harassment Act 1997, see Practice Note: Harassment—Protection from Harassment Act 1997 • breach of duties of fidelity and confidentiality, see Practice Notes: The duty of fidelity and fiduciary duties, Confidential information and trade secrets in employment and The term of trust and confidence • breach of contract, see: Wrongful dismissal—overview • unfair dismissal, see: Unfair dismissal—overview It is generally regarded as unrealistic and too much of an interference with an employee’s right to a private life to place a total ban on personal