The bankrupt’s estate Pursuant to section 283 of the Insolvency Act 1986 (IA 1986) all property (as so broadly defined) belonging to or vested in the bankrupt at the commencement of the bankruptcy forms part of the bankruptcy estate and will under IA 1986, s 306 vest automatically in the trustee in bankruptcy (trustee) immediately upon their appointment. Causes of action Property is defined very widely in IA 1986, s 436 and includes causes of action. Therefore, causes of action pursuable by an individual which have accrued before the commencement of their bankruptcy form part of their estate as items of property and vest in their trustee. This is whether or not the cause of action was prosecuted by way of a court claim prior to the bankruptcy. The exception to this is causes of action ‘where the damages are solely to be estimated by immediate reference to pain felt by the bankrupt

This Practice Note is a ‘how to’ guide on drafting and negotiating a good faith obligation in a commercial business-to-business (B2B) agreement which signposts relevant content. It includes links to potentially relevant issues, including what does good faith mean, preliminary considerations, implied and express obligations of good faith, agreements to negotiate, remedies, other clauses to consider and practical drafting points. Unlike the position in some other jurisdictions, in English law, there is no general duty of good faith that applies to commercial transactions. Parties may sometimes expressly agree a provision in their contracts that obliges one or both parties to do something in good faith. This may be incorporated into an agreement as an obligation on both parties or just on one party to do something. Where no express duty of good faith is agreed, one party may argue that there was an implied duty of good faith. The position is governed by case law which continues to evolve. There are a number of considerations to bear

Construction analysis: In a contract (under Scots Law) for the supply of materials, DC Eifeket Aggregates AS (DCE) proceeded under an erroneous belief that the contract required the supply of ‘category B’ rock (Type B) rather than ‘category A’ rock (Type A). Having proceeded to supply Type B, DCE was sued for breach of the obligation to supply Type A. DCE averred that the parties had conducted negotiations on the basis that Type B was going to be supplied, and thereafter that DCE had been paid for the supply of Type B. It argued, based on these averments, that: (i) properly construed, the contract required the supply of Type B, or, alternatively; (ii) Dragados (UK) Ltd (DUK) was now personally barred from asserting an entitlement to Type A. Both defences were found irrelevant at a legal debate. The case illustrates the importance of reviewing the technical requirements under a contract for materials, and the limited scope for a ‘plan B’ if you are faced with an action for implement or damages. Written by Nick McAndrew, advocate, Ampersand Advocates.

A post-termination restriction (or restrictive covenant) in a contract of employment will be void from the beginning unless the restraints that it imposes are reasonable having regard to the interests of the parties and of the public. For further information, see Practice Notes: • Restraint of trade in employment • Post-termination restrictions on competition • Post-termination restrictions—reasonableness If a contract of employment is terminated following a repudiatory breach by the employer, such as a wrongful or

Once an option to tax land and buildings has been made, it can only be revoked in certain circumstances. One of these circumstances is where an option has had effect for more than 20 years. Under paragraph 25 of Schedule 10 to the Value Added Tax Act 1994, a taxpayer can revoke an option to tax that has had effect for more than 20 years provided the taxpayer either meets certain conditions or gets prior permission from HMRC. The conditions are set out in HMRC VAT Notice 742A, section 8.3 and have force of law. The taxpayer must meet Condition 1 or all of Conditions 2–5. Condition 1 would not apply here as this

date [date] Parties 1 [name of Seller, ie the mortgagee] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Seller) 2 [name of (first) Buyer] [and [name of second Buyer] both] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] ([together] Buyer) 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 at Schedule 2;] [Chattels Price • £[amount in figures] [([amount in words] pounds)];] Completion Date • [date] [or, if later, [five] working days after the Consent is obtained]; [Consent • written consent to the Transfer (satisfying the requirements of the Lease) from the Landlord [and, if required, from any Superior Landlord];] Deposit • [number]% of the Price; [Employees • the employees listed in Schedule 6;] HMRC • HM Revenue & Customs; Interest • interest at a rate of [4]% per annum over the base rate of [name of bank]; [Landlord • the person entitled to the immediate reversion to

date [date] Parties 1 [name of Seller] in administrative receivership [and also in liquidation] incorporated in England and Wales (company registration number [number]) whose registered office is at [address] (Seller) acting by [any one of] its [joint] administrative receiver[s], [name of (first) receiver] (Insolvency Practitioner) [of [address] OR [and [name of joint administrator] (Insolvency Practitioner) [both] of [address]] ] (receiver [s]) 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) 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]); Chargee • [name] of [address]; [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 at Schedule 2;] [Chattels Price • £[amount in figures] [([amount in words] pounds)];] Completion Date • [date] [or, if later, [five] working days after the Consent is obtained]; [Consent • written consent to the Transfer (satisfying the requirements of the Lease) from the Landlord [and, if required, from

This Q&A assumes that the contract proposed to be novated, and the novation contract itself, are business to business generic supply contracts, and are not subject to any specific sector or industry regulation. A novation is subject to the usual rules on contract formation, like any other contract. A novation therefore requires all parties to consent to it and to agree to the terms upon which it is made, (which will include any commercial terms as to consideration or payment of fees). See Practice Note: Novation—why and how to novate a contract, section ‘Novation of a contract—consideration and consent required’. As a novation involves both the transfer of the benefit and the burden of an underlying contract, the terms of that underlying

Commercial analysis: The Court of Justice ruled that the Consumer Rights Directive 2011/83/EU (CRD), must be interpreted as meaning that a trade fair stand, such as that at issue in the main proceedings, at which the trader carries out its activity for a few days each year, constitutes ‘business premises’ under the CRD if, in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out its activity there and will solicit him in order to conclude a contract.

Dispute Resolution analysis: In the case of Times Travel (UK) LTD v Pakistan International Airlines Corporation the court considered the issue of whether a contract may be avoided on the grounds of economic duress stemming from a lawful act of duress, such as a threat of a lawful act or omission. The Court of Appeal held that in a commercial context, if one party is exerting lawful economic pressure to achieve a result which it believes in good faith it was entitled to (irrespective of whether such a belief was reasonable), such as taking advantage of its position as a monopoly, then such actions will not amount to economic duress so as to avoid the contract. Written by Laura Alliss, associate director/solicitor at DJM Solicitors.

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

We have assumed that: • Company A endorses the goods/services of Company B to a consumer, and the consumer enters into a contract with Company B pursuant to the endorsement • there is no contract between company A and the consumer Liability of Company A under the contract between the consumer and Company B/the trader Under the rules of privity of contract, only parties to a contract are able to enforce rights and obligations against each other (see Practice Note: Third party rights—the common law doctrine of privity of contract). This means that under the privity of contract doctrine, in the scenario described, the consumer could not sue Company A to enforce Company B’s obligations under the contract. The doctrine of privity of contract provides that a contract can