Case study A enters into a contract with B for the repair of a roof of a building. A owns the building, and uses part of the building for business purposes and part for residential accommodation. B enters into the contract as a business carrying out the trade of roof repair. Definition of consumer Under Consumer Rights Act 2015 (CRA 2015), s 2, ‘consumer’ means an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession; see Practice Note: Consumer Rights Act 2015—summary. For general information as to how the CRA 2015 applies to contracts for services, see Practice Note: Consumer Rights Act 2015—services. The Competition and Markets Authority (CMA) has published guidance on the CRA 2015, which says that it considers that the words 'wholly or mainly' clearly invite consideration of transactions that are entered into for a mixture of personal and business reasons. The CMA believes that, in cases of

In practice, where conditionality clauses have been drafted in favour of the buyer and such conditionality is to be 'at the buyer’s absolute discretion', then a test of reasonableness is unlikely to be implied into the contract. In the case of planning conditionality, a seller often requires the contract to have a definition of 'Onerous Conditions' to objectively assess whether a planning permission is satisfactory or not. For example, by reference to levels of housing density, net floor space

In order to be properly incorporated into a contract, one party’s standard terms and conditions must be brought to the attention of the other party at the time of signing. Circle Freight International Ltd v Medeast Gulf Exports Ltd, as quoted in Transformers & Rectifiers Ltd v Needs Ltd, holds that a party's standard terms and conditions will not be incorporated unless that party has given the other party reasonable notice of those terms and conditions. Furthermore, the last shot principle maintains that the last terms and conditions passing from one party

Every employee is entitled to a minimum period of notice of dismissal from his employer if, but only if, it is necessary to give notice in order lawfully to terminate the contract. The contract of employment may be terminated in a variety of ways at common law, including: • by expiry of a fixed or limited term (the contract will terminate automatically when the agreed date of expiry arrives) • by notice (the length of notice required depends upon what was agreed expressly or impliedly) For statutory unfair dismissal purposes, ‘dismissal’ includes: • expiry of a fixed or limited term contract, unless the term is

This Q&A relates to a general commercial contract between business entities which is governed by the laws of England and Wales. Consent to assign Assignment provisions in a contract are interpreted strictly. If an agreement permits assignment subject to the prior written consent of the other party, lack of that consent will render an attempted assignment invalid (see Graham v British Gas. An assignment will fail if it is expressly prohibited in the contract (see Linden Gardens Trust v Lenesta Sludge Disposals, Darlington Borough Council v Wiltshier Northern, Alfred McAlpine Construction v Panatown ). See Practice Note: What constitutes a valid assignment

Non-solicitation clauses A restriction on ‘poaching’ employees is one type of restrictive covenant usually contained in commercial or employment contracts. The four types of restriction are as follows: • non-solicitation: a business or former employee is prevented from approaching the clients or customers or employees of another business for a specified period • non-dealing: such a clause is wider. It not only prohibits non-solicitation but also dealings between one party and employees or clients or customers of the other party • non-competition: a party is prohibited from competing with the business of the other party in specified ways and for a specified period • non-disclosure or confidentiality: the party

Where a contract states that ‘time is of the essence’ in respect of the performance of an obligation stipulated in the contract, it means that there is a requirement that the obligation is performed within the timescale specified. Failure to do so results in a breach of contract. See Practice Note: Time of the essence. Time of the essence clauses can be used in

Unfortunately, we have been unable to find authority on the specific point raised in this Q&A. Terms of the contract It is first necessary to determine the parties’ respective rights and obligations under the contract. Investors Compensation Scheme v West Bromwich Building Society sets out the five principles of contractual interpretation which were later summarised in BCCI v Ali as: ‘To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties’ relationship and all the relevant facts surrounding the transaction so far as known to the parties.

Assignment of contracts An ‘assignment’ is an immediate transfer of an existing proprietary right, vested or contingent from one party to another. Assignments can be effected either: • by consent—either by way of gift or for consideration, or • by operation of law—when they can occur during life or on death. An assignment by operation of law: ◦ will transfer the benefit of rights to the assignee ◦ but will not make the assignee personally liable Whether consent is required will depend on the terms of the contract. For example, a contract may contain an express provision permitting the assignment of rights. Such a provision can include rights that would otherwise be personal and not assignable. Where a contract expressly permits the assignment of rights under it, it may also provide conditions for effecting that assignment. Assignment provisions are interpreted

A contract may refer to ‘statute’, ‘legislation’, ‘subordinate legislation’ or ‘enactment’. Such terms have different meanings. In addition, retained EU law is a category of law with its own categories of legislation. Legislation ‘Legislation’ is a broad term which includes primary legislation, secondary legislation and some retained EU law: • ‘Primary legislation’ describes the main laws passed by the legislative bodies of the UK (for example, Acts of the UK Parliament, Scottish Parliament, Welsh Parliament and Northern Ireland Assembly), includeing: ◦ Acts passed by historical parliaments ◦ other primary legislation for Northern Ireland ◦ Church of England Measures (legislation for the established church in England passed by the General Synod of the Church of England) ◦ certain legislative instruments made by the Crown and the Privy Council under the royal prerogative (called 'Prerogative Orders' and comprising either ‘Orders in Council’ (when made by the Queen on the advice

Landlord’s notice Where a lease is to contract out of sections 24 to 28 of the Landlord and Tenant Act 1954 (LTA 1954), the landlord is required to serve a ‘landlord’s warning notice’ on the tenant. A warning notice must also be served if the landlord and tenant agree that the tenancy shall be surrendered as set out in an agreement. In practice, this step is usually taken by the landlord’s solicitor. LTA 1954, s 38A sets out the steps that the parties must take if their agreement

As explained in Q&A: What are Braganza duties in commercial contracts?, the duty of rationality applies where a contract provides that a matter is to be determined by a party. This was considered in Braganza v BP Shipping Ltd, and the case further established the principle of reviewing contractual decision-making on the ground of rationality. The courts distinguish between discretions which are subject to duties and discretion where a party is simply deciding whether to exercise an absolute right. Regarding the latter, an example is where a party is choosing whether to terminate a contract where there is an express power of termination in the event of a breach