The Practical Lawyer


Binding contract – created by email

We reported in our November 2019 edition (p2) on a case where the HC held that an email ‘signature’ in a footer was capable of creating a binding contract for the sale of land. It is perhaps not surprising therefore that a further case has held that an exchange of emails created a contract for the sale of goods.
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Reasonable endeavours – meaning

An interesting article considers the vexed issue of the difference between an obligation to use reasonable endeavours as opposed to best endeavours. The article considers recent case law and invites practitioners to consider whether such clauses are the best option for inclusion in a contract. 
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Legal advice privilege – applies after dissolution of a company

The CA recently had to consider: what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved and the Crown has disclaimed all interest in its former property?
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Contractual terms – classification

An admirably clear article summarises the importance of categorising contractual terms in commercial negotiations. The classification of a contractual provision is crucial because it can determine the remedies available in the event of a breach. Whether a contractual provision is classed, as a matter of law, as a condition, a warranty or an innominate term (also known as an intermediate term) is a technical issue which can have significant practical and financial implications.
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Insolvent company – director liable for cheap deal

The HC has considered a case involving an insolvent company and the liability of directors. A director purchased a property at a substantial undervalue from the company acting by its liquidator. The allegation was that this was for the director’s own benefit and that he did not have regard to the interests of the creditors as a whole. It was alleged that this was in breach of the duties owed by the directors to the company under ss171-175 Companies Act 2006 and in particular his fiduciary duty to act in the best interests of the company’s creditors. The judgment helpfully summarises these provisions:
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Deed signature – witness and signatory

 A recent HC case considered the somewhat narrow point of the status of commission paid to a mortgage broker. What practitioners will find of wider interest from the judgment is the court’s view on the execution of a deed.
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Law Commission – e-signatures

 It would be easy to dismiss the above case as merely a HC judgment. However, the decision reflects the general direction of travel regarding electronic signatures. The Law Commission has recently confirmed that electronic signatures can be used to sign formal legal contracts under English law.
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Electronic signatures – valid?

 A recent HC judgment should strike fear into the hearts of property lawyers. 
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Injunctions against persons unknown – use in fraud cases

We reported in our September 2019 edition (p25) about the use of injunctions against persons unknown as a potential remedy in trespass cases. An article discusses the use of this remedy in a recent case involving ‘push payment fraud’.
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Buyout obligation - not triggered until price determined

The CA has reached a common-sense decision in relation to buying out an outgoing partner's share. The case involved a family-owned agricultural partnership agreement which provided that on retirement or death of a partner, the ongoing partners would buy out the outgoing share by the mechanism of a put and call option. The partnership agreement required an initial upfront payment followed by the balance in instalments. The first instalment was to be paid approximately four months after the departure of the outgoing partner but if unpaid the entire balance would become immediately repayable.

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