In commercial transactions it is frequently the case that an ‘entire agreement’ clause will be inserted into the contract with the purpose of seeking to exclude any liability in respect of matters arising outside of the terms of the contract. This will include representations that have been made with regard to the contract which are in fact inadvertent misrepresentations. An effective entire agreement clause therefore prevents the rescission of the contract or a claim for damages on the basis of a non-fraudulent misrepresentation. The standard contractual terms for commercial property sales include a clause of this type and such clauses are also standard in residential property sales. Similarly, exclusion

We refer you to the Practice Note: Applicable law—a guide for dispute resolution practitioners which explains that the applicable law is the law that governs a dispute between the parties. Generally, parties have the freedom to chose the applicable law. However, where they have failed to do so or have chosen a law which is prohibited for some reason, then the applicable law will be determined by the application of the relevant directive, convention or common law rules. For example,

Is there a time limit for notifying tenderers of the outcome of a public procurement exercise? While there is no set time limit for notifying tenderers of the outcome of a public procurement exercise, Article 55(1) of Directive 2014/24/EU (the Public Contracts Directive) and Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, reg 55(1) require contracting authorities to inform each candidate/tenderer of its decision ‘as soon as possible’. This includes instances where the contracting authority has decided not to award a contract, or for example where they are going to recommence the procedure at a later date. This suggests that waiting two years to inform tenderers of the outcome would be unacceptable unless it could be justified that two years was the earliest possibility for notification, ie where internal processes and procedures meant that the earliest the contracting authority

This Practice Note examines how to determine which system of law is applicable to a contract of employment or employment relationship. It takes account of the impact of Brexit and the end of the implementation period (IP) for the Withdrawal Agreement on IP completion day (11pm on 31 December 2020) and the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023) on this area of law (see: Brexit impact, below). The Practice Note: • provides an overview of the Rome Convention and Regulation (EC) 593/2008, Rome I (see: Overview of Rome Convention and Rome I, below) • examines the key employment-specific provisions in Assimilated Regulation (EC) 593/2008, UK Rome I, including the ‘habitual place of work’ test, the ‘closer connection’ test, non-derogable provisions, overriding mandatory provisions (see: Determining the applicable law, below) • considers public policy issues and who should apply the applicable law (see: Applicable law manifestly incompatible with the public policy of the forum and Who should

Commercial analysis: Mohamed Sacranie of Allen & Overy considers whether a parent company is liable if it restructures its operations and a now disused subsidiary is prevented from meeting its own contractual obligations after the Court of Appeal held in Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 that the parent neither induced nor intended its subsidiary’s breach and reaffirmed this economic tort’s restricted scope.

In Phoenix Life Assurance Ltd v The Financial Services Authority, the High Court held that the contract for a single premium with-profits policy should be interpreted as a whole so that Guaranteed Minimum Pensions were covered by a nominal capital sum together with any bonuses allotted to the policy.

Where an employee is dismissed by reason of redundancy, the Employment Rights Act 1996 (ERA 1996) provides a mechanism for the employer to offer the employee, and for the employee to accept, new or renewed employment as an alternative to a redundancy payment. In certain circumstances, if this happens and the employee is re-engaged within four weeks, the original dismissal is deemed a ‘fiction’; the employee is considered not to be dismissed and is not entitled to a statutory redundancy payment. In all cases, unless the new terms and conditions offered are identical to the previous ones, both the employee and the employer are given a statutory trial period lasting at least four weeks as an opportunity to try out the new arrangement. Depending on the new terms and conditions, and the employee’s reasons for refusing them, or refusing to continue after the trial period ends, the employee may lose their entitlement to a statutory redundancy payment. This Practice Note explains how this mechanism operates. For information on the right to a statutory redundancy

A contract may be wholly discharged by agreement as follows: • where one party releases the other from its obligations by deed (release) • the parties agree to compromise a contractual claim on agreed terms (accord and satisfaction) • an executory agreement is rescinded by mutual agreement (rescission) • contract expressly provides parties with option to terminate

An annualised hours contract is one in which the employee does not have any set daily or weekly working hours but is required to work not less than a fixed number of hours in each calendar, or financial year. When the contract of an employee on annualised hours is to be terminated the following should be considered: • whether, if the target hours has been exceeded, the employee will have been paid at, or above, the minimum wage on average for time worked over a pay reference period • what provision is made in the employment contract to deal with overpayment or underpayment For information on the national minimum wage, see: • Practice Note: National minimum wage • Minimum wage calculation checklist [Archived] • Minimum wage compliance checklist Where

date [date] Parties 1 [name of Seller] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Seller) 2 [name of Buyer] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Buyer) 3 [[name of Guarantor] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Guarantor)] 1 Definitions In this Agreement, the following definitions apply: Actual Completion Date • the date on which the Transfer is actually completed; Buyer’s Solicitors • [name] of [address] (reference: [details]); [Charge[s] • the charge[s] appearing at entry [number] [and [number]] in the charges register of title number [number] at [date of official copy entries];] [Chattels • the items listed in Schedule 2;] [Chattels Price • £[amount in figures] [([amount in words] pounds)];] Completion Date • [date]; [Contracts • the contracts [for the [provision of services and maintenance AND/OR leasing of equipment AND/OR appointment of managing agents] [specify other contracts]] identified in Schedule 3;] Deposit

[Insert date] Dear [insert employee's name], Following our recent discussions about redundancy[ and the notice to terminate your employment sent to you on [insert date]], we are pleased to be able to offer you [your old job back OR a new job as [insert job title]] starting from [insert commencement date]. The terms and conditions of your [renewed OR new OR  employment[ are unchanged and] are set out in the attached document. [As the new terms and conditions are not the same as your previous employment, a statutory trial period of four weeks applies, in order for both you and the Company to try out the new arrangements. The trial period

Section 17 of the National Minimum Wage Act 1998 (NMWA 1998) provides that, if a worker who qualifies for the national minimum wage is paid for any pay reference period by their employer at a rate which is less than the national minimum wage, the worker is to be taken to be entitled under their contract to be paid, as additional remuneration in respect of that period, calculated by one of two methods set out in NMWA 1998, s 17(2) and 17(4). Where the two methods produce different amounts, they will be entitled to whichever is the higher. An individual who qualifies for national minimum wage