A court would strive to give effect to the intentions of the parties. Whenever a court has to decide what a contract means, it is giving effect to those intentions however imperfectly they might have chosen to express them by their written words. Often it will be necessary to imply a term so as to give effect to the intention it is able to identify from the words which are used. As the Supreme Court pointed out in the recent decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd, giving effect to the words used and implying a term are two different concepts. Only if the first task failed did one have to decide

Initial considerations A student who withdraws from a distant learning course on the basis of their unsuitability may be entitled to a refund depending on: • the contractual terms and conditions for provision of the training especially whether there is an express term of the contract making prospective students responsible for ensuring their own suitability for the course prior to commencement • whether there is a mandatory contractual term requiring completion of the aptitude test and what the contractual provisions are in default of completion • whether the aptitude test was the sole determining factor of ‘suitability’ to take the course, and • how, why and by whom was the consumer deemed ‘unsuitable’ for the course—if it was by the provider it would seem unreasonable to refuse at least a partial refund If the contractual terms are explicitly clear including providing

For the purposes of this Q&A, we have focussed on the contractual arrangements and allocation of liabilities stemming from the business transfer. Commercial Agency Regulations 1993 Our Practice Note: Termination of commercial agency considers the regulations governing the termination of commercial agencies (as defined in the Commercial Agency Regulations (CAR 1993)) and looks at when the right to indemnity or compensation does or does not exist in general. CAR 1993, reg 17 deals with the entitlement of commercial agent to an indemnity or compensation on termination of an agency contract. In particular, reg 17 (6)–(9) states the following: (6) Subject to paragraph (9) and to regulation 18 below, the commercial agent shall be entitled to compensation for the damage he suffers as a result of the termination of his relations with his principal. (7) For the purpose of these Regulations such damage shall be deemed to occur particularly when the termination takes

Variations may also cause delays to the completion date and potentially entitle the Claimant to an extension of time and prolongation costs—these aspects relating to variation claims are often dealt with separately as part of the extension of time claim and the prolongation costs claim. For example, the major forms of JCT contract contain separate mechanisms for the valuation of varied works on one hand, and the assessment of loss and expense resulting from the impact of the variation on the progress of the works on the other (see Practice Note: JCT contracts—variations — Valuing variations under JCT contracts). Claimants should therefore take care not to ‘double dip’ between the different aspects of the claims. No. Description of Variation Claimant’s case Defendant’s response Judge/Tribunal comments 1 The Claimant planned to use slab foundations for block A as shown in the Claimant’s drawing reference XX dated XX.The Defendant, by its email dated XX, instructed the Claimant

The requirements of a deed are set out under section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989). To be a deed, an instrument must: • be in writing • make it clear on its face that it is intended to be a deed • must be validly executed as a deed by the parties (or by persons authorised to execute it in the name or on behalf of the parties), and • be delivered as a deed While a contract takes effect upon execution, a deed takes effect upon delivery which may not necessarily coincide with the execution date. Delivery does not mean physical delivery. Rather, a deed is delivered when a party makes clear its intention to be bound, regardless of whether that party retains possession of the document. If a party does not want to be bound immediately

Unincorporated association An unincorporated association cannot enter into contracts or own assets and is not a separate legal entity from its members and officers. As an unincorporated association is not considered to be a legal entity, it cannot enter into a legal contract to purchase goods. See Practice Note: Unincorporated associations which provides a useful overview on the legal status of unincorporated associations and states: 'In general, the operation of an unincorporated association is subject to common law rules rather than legislation, but the exact legal framework will depend upon the unincorporated association's objects and operations.' Dealing with unincorporated associations in a finance transaction Practice Note: Dealing with unincorporated associations in a finance transaction—investigating capacity and authority covers the steps which can be taken to investigate capacity and authority under

At its simplest, a retention of title clause is a provision in a contract which allows the seller to retain title to goods which they have delivered to a buyer until the buyer has paid for them in full or, where permitted to do so, sold them on to a third party (Aluminium Industrie Vaassen v Romalpa Aluminium). A valid retention of title clause gives a seller priority over secured and unsecured creditors of the buyer if the buyer fails to pay for the goods where it is insolvent or for other reasons specified in the clause. The clause should give the seller the right to recover the goods from the buyer. As title will not have passed, the seller, once it has regained possession, will have the right to sell the goods to another buyer. A retention of title clause must be

The Consumer Rights Act 2015 (CRA 2015) applies to contracts for the supply of goods to consumers, including hire-purchase agreements. CRA 2015 sets out various statutory rights, including that goods must be as described. If goods are not as described, the consumer may have the short-term right to reject (within the first 30 days) and also has access to the tiered remedies. CRA 2015 also provides remedies where the goods do not comply with the pre-contract information provided by the trader to the consumer under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134 (CCR 2013). The draft CTSI guidance Car traders & consumer law: guidance for dealerships (page 35) provides the following as an example: ‘You describe a car as having one careful owner but

A shareholders’ agreement is no different from any other form of contract and so can become binding on shareholders because it has been agreed to by all of them either orally, in writing (but not formally signed) or by conduct. See Q&A: What is the effect if one party fails to execute a multi-party agreement after the others have executed. Will this bind only the parties executing? If the agreement has been signed by some, but not all the shareholders, the first question will be why. If they did not sign because they did not agree with the agreement or the agreement was only to come into effect if signed, then that is likely to be an end of the matter. However, if they did not sign for some other reason, such as oversight or because they did not think it was necessary, then the

The legislative purpose of the statutory declaration mechanism is to ensure that if a tenant has less than 14 days to consider its position, then there should be a process to match the safeguards previously offered by the old procedure where a court order was necessary in order to contract out in line with the well-established and legally tested procedure under the Statutory Declarations Act 1835. The term commencement date for the lease should be inserted in paragraph 1 of the tenant’s declaration. If this date is not certain, for example if it is to commence on the date the tenancy is completed or will be calculated by reference to another date (such as the date of completion of building works), it is common to use wording such as ‘the date on which the tenancy is granted’ or ‘the date set out in the lease’ even though

In answering this Q&A, we have assumed that A presently holds the legal title on trust absolutely and intends to transfer the beneficial interests to be held on trust for A and B. This may either be as joint tenants or as tenants in common in such shares as they have agreed. It will be recalled that as a result of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989), a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each. As the Court of Appeal noted in the recent decision in Rollerteam v Riley, a distinction is to be drawn between an agreement to make a transfer and a document which itself

The provisions of Part II of the Landlord and Tenant Act 1954 (LTA 1954) give rise as a default in commercial tenancies to security of tenure, meaning that a protected lease does not expire by effluxion of time and the tenant is entitled to continue to occupy upon the terms of the lease continued by operation of law until either party takes the necessary steps to bring the lease to an end or to apply for a new tenancy. However the parties can, by following the formalities required by LTA 1954, contract out of its provisions, meaning that the security of tenure does not apply. In such circumstances at the expiration by effluxion of