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Commercial

Misrepresentation – entire agreement?

If there is an ‘entire agreement’ clause, will that prevent any subsequent claim for misrepresentation?
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Competition – internet bans?

It is very difficult for a manufacturer or supplier to prohibit its retailers from making online sales. 
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Procurement – sub-contractors?

In April 2018, the government announced a new policy requiring main contractors and suppliers to advertise sub-contract opportunities (under their head contract with central government). 

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Drafting – ambiguity?

If a contract is clear and unambiguous, the court must apply it. Hence the importance of distinguishing between ambiguous and unambiguous wording.
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Exclusion clauses – ‘reasonableness’

The rules on exclusion clauses in UCT 1977 apply to both business and consumer contracts. In essence, any exclusion or restriction of liability for loss will be subject to a ‘reasonableness’ test (unless it relates to personal injury, in which case it will be void).

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Web – photo re-posting

The ECJ has held that the reposting of a photo is likely to require the authorisation of the copyright owner – even if it is already published on the web.

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Force majeure – sole cause

If force majeure arises (eg war) then contractual obligations come to an end (subject to the obligation to use ‘reasonable endeavours’ to avoid the force majeure incident).

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Insolvency – assignment of claim

Administrators, trustees in bankruptcy, and liquidators can assign a claim or course of action belonging to the insolvent party. But, in any assignment there is a potential risk of a non-party costs order being made if the claim is ultimately unsuccessful. Ideally, therefore, an indemnity will be obtained from the person the claim is being assigned to.

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CGT – entrepreneurs relief

An important CGT relief is provided via entrepreneurs relief – but that is lost if the tax-payer’s holding falls below 5%.

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Contract – duty of good faith?

To what extent can you imply a duty of 'good faith' into a commercial contract? The position under English law is that contracting parties do not owe a general duty of good faith to each other (unless there is a fiduciary relationship). This is different from the approach in many civil law jurisdictions (where a duty of good faith is included in the Civil Code). In Yam Seng [2013] a High Court judge did imply a general duty of good faith into a particular contract, but judges since then have tried to limit the effect of that case. In effect, a duty of good faith will not be implied unless a contract would otherwise lack commercial and practical coherence.

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Most-read articles

Probate fees – increase delayed
Thursday, 09 May 2019
We reported in the April 2019 edition (p34) on the increase of probate fees which was due to come into effect in April 2019. Read more...
VAT Order – construction services
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The VAT (s55A) (Specified Services and Excepted Supplies) Order 2019 comes into effect in relation to supplies made on or after 1 October 2019. Read more...
Brexit – impact on solicitors
Thursday, 09 May 2019
The Law Society has issued guidance for solicitors on the impact of the postponement of the UK’s departure from the EU. Read more...
RTA claims – no lawyers
Thursday, 09 May 2019
The Gazette reports that the MoJ has issued a consultation as to how to create an IT platform to enable unrepresented litigants to progress their own claim. Read more...
CFAs – no automatic 100% success fee
Thursday, 09 May 2019
In RTA claims, may firms routinely set a 100% success fee and claim the maximum limit of 25% of total damages. Read more...
T’s failure to respond – not a refusal of access
Thursday, 09 May 2019
The UT has held that T’s failure to reply to a letter from L requesting access to the property did not amount to a refusal of access. Read more...
MEES non-domestic rentals – reminder
Thursday, 09 May 2019
The MEES regulations are designed to tackle the least energy efficient properties in England and Wales and the Regs establish a minimum standard of EPC band E for domestic and non-domestic private... Read more...
‘Highway’ – no single meaning
Thursday, 09 May 2019
The SC has recently clarified the meaning of a highway. Read more...
Procedure – divorce
Thursday, 09 May 2019
Divorce practitioners may be particularly interested in the background to a recent case setting out the administrative processes and procedures by which errors in divorce proceedings are picked up... Read more...
EU citizens – right to work checks
Thursday, 09 May 2019
The government has issued guidance on employing EU, EEA and Swiss citizens, and their family members, after Brexit. Read more...

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